
    DE WITT C. GIBSON, Respondent, v. THE AMERICAN MERCHANTS’ UNION EXPRESS COMPANY, Appellant.
    
      Express company — Receipt—liability under — Loss — Negligence—proof of— “ G. O. B." .
    Plaintiff delivered to defendant, at Fort Plain, N. Y., February 20,1871, a box, marked “S. F. Dana, Malden, West Ya., O. O. D., $45,” and his son and clerk drew up a receipt therefor, from blank receipts left by defendant with plaintiff, which was signed by the defendant and returned to plaintiff. By the terms of the receipt, defendant undertook.to forward the box to the nearest point of destination reached by it, but was not to be liable for any loss, except as forwarder, nor for loss by fire, nor for any default or negligence of any company, to which the property might be delivered for transportation, off the route of defendant; and such company was to be regarded as ¡the agent of the consignor. The defendant transported the box to Columbus, Ohio, the nearest point on its route to West Virginia, and delivered it to the Adams Express Company, by which it was transported to Malden and tendered to the consignee, who refused to receive it and pay charges. Subsequently, and on the second of March, the office of the company, and with it this box, was burned; held, that the defendants were not liable. The ordinary character of the shipment was not affected by the words, C. O. D., and the contract thereby expressed, until the collection should, in fact, be made.
    After the tender and refusal of the consignee to accept the box, it was held by the company as a warehouseman, and the company could only be made liable by reason of its negligence, which cannot be presumed but must be proven; and as, in this case, there was no proof as to the cause of the fire, the defendant was not liable.
    
      Appeal from a judgment of the County Court of Montgomery county, affirming a judgment in favor of the plaintiff, in a Justice’s Court.
    On the 20th day of February, 1871, the plaintiff delivered to defendant, at Fort Plain, N. Y., a box containing a light double harness, worth forty-five dollars, marked, “ S. F. Dana, Malden, West Va., C. O. D. $45.” From blank receipts, left by defendant with plaintiff, his son and clerk drew up a receipt for this box, which was signed by defendant’s agent and returned to plaintiff. By the terms of that receipt, defendant undertook to forward the box to the nearest point of destination reached by defendant, but was not to be liable for any loss or damage, except as forwarder only, nor for loss by fire, nor for any default or negligence of any company, to which the property might he delivered for transportation, etc., off the route of defendant; nor was such other company to be deemed the defendant’s agent, but, on the contrary, it was to be taken as plaintiff’s agent, as to this property. The defendant took the box and transported it to Columbus, Ohio, the nearest point on its route to West Va.; and, at Columbus, on the 22d day of February, defendant delivered said box, in good order, to the Adams Express Company. By this last company, the box was transported to Malden, West Ya. When it reached Malden, does not appear. The evidence tends to show that the package was tendered to S. F. Dana, the consignee, who refused to receive or pay the charges and collection thereon. When this was, does not appear. Upon the 2d day of March, 1871, the box still being in the possession of the Adams Express Company," at Malden, the express office was burned, and, with it, this box and its contents. The cause of the fire does not appear. After the burning of the box, the plaintiff, at Fort Plain, demanded the amount to be collected by defendant or a return of the property. Upon a failure to’ do either, this action was brought, and plaintiff recovered forty-five dollars damages. The judgment of the justice was affirmed by the County Court, and an appeal is now taken to this court.
    
      J. Genter, for the appellant.
    The acceptance of the receipt-constituted a valid, special agreement between the parties. (Maghee v. Camden and Amboy Trans. Co., 45 N. Y., 514; Bissell v. N. Y. 
      
      C. R. R. Co., 25 N. Y., 442; Meyer v. Harndens Ex. Co., 24 How., 29; Westcott v. Fargo, 6 Lans., 319; Van Santvoord v. St. John, 6 Hill, 157.) As to effect of the letters, C. O. D. (Am. Mer. Union Ex. Co. v. Schrier, 55 Ill., 140; Weed v. Barney, 45 N. Y., 344.) Negligence must be proved. (Bush v. Miller, 13 Barb., 481; Schmidt v. Blood, 9 Wend., 268 ; Edwards on Railroads, 285.)
    
      J. D. and F. F. Wendell, for the respondent.
    The acceptance of the receipt did not establish a special contract. (Railroad Co. v. Manufacturing Co., 16 Wallace, 318; 1 Redf. on Railroads, 302; Blossom v. Dodd, 43 N. Y., 264.) As to the effect of the mark, C. O. D. (Tooker v. Gormer, 2 Hilt., 71; Palmer v. Holland, 51 N. Y., 416; Reed v. U. S. Ex. Co., 48 N. Y., 462; Denning v. N. Y. C. R. R. Co., 13 Gray, 481; Whitney v. Merchants’ Union Ex. Co., 6 Am. R., 207.)
   Boaedmab", J.:

Upon the facts stated, it cannot be doubted that the plaintiff should be held in law to have known the contents of the receipt, made out by his clerk upon blanks for his daily use. Nor can it be doubted that a common carrier, in ordinary cases, would not be responsible, under such a receipt, for loss or damage to property, after its safe delivery to the next connecting carrier, according to the usual course of business.

The letters, O. O. D., and the contract thereby expressed, do not, in my judgment, change this shipment from one of an ordinary character, until the collection shall in fact have been made. The duty to transport is precisely the same; and so of a tender of delivery. If the consignee neglects or refuses to take the property and pay the money, the property remains in the carrier’s hands as a warehouseman, precisely as if no money besides express charges were to be collected. In either case, the carrier is responsible only for a loss caused by its negligence. If this be true, the defendant was not liable for loss, after delivery to the Adams Express Company, under the facts in the case."

But in this case, it may well be doubted if the defendant would have been liable, had its route run to Malden, West Va., and the loss happened, as appears by this evidence, in defendant’s own office at that point. It is not shown when the box arrived at Malden, or when it was tendered to the consignee and refused by him. After such refusal, it was the duty of the carrier to keep the property, as a warehouseman. But very soon thereafter, and before advice could have been obtained from the plaintiff, the office and box were burned. It may be claimed that the carrier was not bound to notify plaintiff, in the absence of contract or directions. If the carrier became a warehouseman, by the refusal of the consignee to accept, he could only be made liable for his negligence. Negligence cannot be presumed, but must be proven, after the proof of destruction by fire, and after tender, as in this case.

Mow, it seems plain that the express company became a warehouseman, and, as there is no proof that the fire was caused by its negligence, it could not justly be held responsible.

Upon both grounds, I think the judgment of the County Court, and of the Justice’s Court, should be reversed, with costs.

Present—Miller, P. J., Bocees and Boardman, JJ.

Judgment reversed, with costs. 
      
       Reed v U. S. Express Co., 48 N. Y., 462.
     
      
       Weed v. Barney, 45 N. Y., 344.
     
      
       Weed v. Barney, 45 N. Y., 347, 348.
     
      
       Bush v. Miller, 13 Barb., 489; Schmidt v. Blood, 9 Wend., 268.
     