
    James Talcott, Appellant, v. The Wabash Railroad Company, Respondent.
    First Department,
    December, 1905.
    Findings by trial court — reversal of erroneous nonsuit by Court of Appeals does not prevent trial court from subsequently finding facts, adverse to plaintiff—common carrier — when contract to deliver goods over connecting lines to destination not proved.
    When the Court of Appeals has reversed a judgment for the defendant because a nonsuit was improperly granted by a referee who found no facts, and the-case is afterwards submitted to the trial court on the same evidence and such, trial court finds the facts adverse tp the plaintiff and dismisses the complaint, on the merits, the Appellate Division will affirm such judgment if the findings, are not against the weight of evidence. '
    It was shown that the plaintiff at Chicago purchased a railroad ticket for New York from the defendant, which only operated its road as far as Detroit, and. delivered excess baggage to defendant’s baggagemaster telling him that it. contained samples; that he paid for the excess weiglrt thereof and received a. check to New York “ for foreign excess.baggage.”
    
      Held, that there was no proof that required the trial court to find as a fact that the transaction constituted an independent contract by the carrier safely to deliver such baggage over the connecting lines to New York, and that the plaintiff -was not entitled to recover when such baggage was destroyed on the connecting lines.
    
      Appeal by the plaintiff, James Talcott, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of f he-county of New York on the 12th day of May, 1904, Upon ¡the decision of the court, rendered after á trial before the court without a jury at the New York Trial Term, dismissing the complaint as upon the merits as to the first cause of action.
    
      Thomas H. Rothwell, for the appellant.
    
      C. V. Nellany, for the respondent.
   Ingraham, J.:

The complaint .alleges four causes of action. Upon the former-trial, which was. had before- a referee, the plaintiff suffered a nonsuit ■ as to the third and fourth causes of .action. The referee granted a nonsuit as.to the first cause of action upon the testimony and dismissed the complaint upon the merits on the second cause of action.. Upon appeal to the.General Term of the Supreme Court the judgment entered-updn the report of the referee was affirmed (89 Hun, 492), but upon appeal to the Court of Appeals the judgment dismissing the firstcause of action was unversed and anew trial ordered and the . judgment dismissing the complaint on the merits oh the second cause, of action affirmed (159 N. Y. 461). A new trial was had before the court at Trial Term, a jury having been waived The case ■ was tried upon .the testimony then before the referee upon the former trial, and' tlie court made a decision' finding the facts and directing judgment dismissing the complaint upon the merits! and from the judgment entered thereon the plaintiff appeals. ,

The testimony being the same as upon the former trial it ..is quite fully stated in the report of the case -in the Court of Appeals. . It was held that the -fundamental question was .whether the contract made between the plaintiff through, liis agent .with' the defendant was for a through transportation of the passenger and his baggage by the defendant from Chicago to New York and return, or whether the contract was for the transportation .of plaintiff’s agent from Chicago to Detroit by the defendant, the defendant acting as agent of the various connecting lines for transportation- over their respective roads from Detroit to New York. In .the Court of 'Appeals Judge Vann delivered an opinion which was concurred in- by Judges Bartlett and Martin. Judge Gray wrote a dissenting opinion for affirmance which was concurred in by Jüdge O’Brien, Parker, Ch. J., taking no part in the decision. Jndge Haight concurred in the result of Judge Yann’s opinion which reversed the judgmént as to the first cause of action, stating : If the referee had found the facts upon the first cause of "action the same as he did with reference to the second, there would have been no trouble with this case. Instead of doing that he improperly granted >a nonsuit. * * *

For this reason I concur for reversal as to the first cause of action, and for affirmance as to the second cause of action, but do not agree with Yann, J., with reference to the other matters discussed in his opinion.” The result in the Court of Appeals, therefore, seems to be that there were three judged who held that the referee was authorized to find, as a fact, that the company agreed, aside from the contract to "transport the passenger, for a new and independent consideration, to transport the trunks containing merchandise to the city of Hew York, and, as a conclusion of law, that the plaintiff, as undisclosed principal, could enforce the agreement.” Judge Haight concurred in this result upon the ground that the referee had made no finding upon this question, and two judges were of the opinion that there was no evidence to justify a finding that there was any contract to transport this baggage from Chicago to Hew York. It would seem that it was the opinion of the majority of the. Court of Appeals that the plaintiff’s agent had made two contracts, one for the transportation of himself and his personal baggage not to exceed 150 pounds, and the other for the transportation of merchandise. Upon this trial, which,was upon the same evidence, the learned trial court found as a fact that the defendant was not a common carrier of passengers and their baggage between the city of Chicago and the city of Hew York; that the defendant did not on or about the 27th of April, 1889, agree to carry said Cullom and his personal baggage' from Chicago to Hew York city, and that the defendant did not agree to carry the property of the plaintiff mentioned in the first cause of action from the city of Chicago to the city of Hew York; and, further, that the defendant only agreed to carry the property in these four trunks safely between Chicago and Detroit, and to deliver them safely to its connecting carrier at said point, the Grand Trunk Railway Company of Canada; and as a •conclusion of law that the plaintiff had- failed to establish any cause of action against the defendant, and dismissed the complaint upon the merits.

A re-examination of the testimony in the light of the discussion in this court and in the Court, of Appeals has satisfied me that this •question was one of fact to be determined by the trial court, and his finding upon that question is conclusive. The opinion of the court is taken up with the discussion of another question' upon which I would not be disposed, to agree with the learned trial judge, ■but he has found the fundamental fact upon which the right to recover must rest against the plaintiff, and I am not prepared to say ■that that finding was so against the weight of evidence that we are justified in reversing it.

Assuming that the contract for the transportation of this baggage was a separate contract, the question is whether there was a specific agreement to carry the merchandise in this baggage through from Chicago to New York, or whether the contract was to carry it over the line of the defendant’s road and deliver it safely to the connecting road to be by it carried to its destination. These trunks were undoubtedly delivered to the baggage agent to be checked as baggage, the plaintiff’s agent at the same time producing his ticket which had been sold by the defendant and which was a passenger ticket to New York. There was no express agreement that the merchandise contained in these trunks should be treated in any other or different way than personal baggage of the plaintiff’s agent which he was entitled to have carried free. The baggage agent was informed that there was merchandise in the trunks, and he .accepted those trunks with such information and charged for the excess of weight over that allowed to each passenger to be carried free, and at the same time delivered to the passenger checks for the .several trunks, one of which was called a duplicate check and was íor “ foreign excess baggage.” The excess weight was stated at 570 pounds and the amount to be paid sixteen dollars.' There was stamped upon this check the letters ■ “ G. T. W. Si,” which were proved to mean ,the Grand Trunk railroad and the West Shore railroad, two roads over which the passenger was to be transported ns a part of his trip to New York. It' seems to me that the most favorable aspect of this case for the plaintiff was that a question of fact was presented which required a determination, but certainly the inference to be drawn from the transaction between the passenger and the baggagemaster did "not require the court to find as a fact that there was such an independent contract.

It follows that the judgment appealed from must be affirmed, with costs.

Patterson and Clarke, JJ., concurred; O’Brien, P. J., and Houghton, J., dissented.

Judgment affirmed, with costs.  