
    D. E. DEYRMANJIAN vs. JOSEPH PALAIS.
    Suffolk, ss.. Municipal Court of the City of Boston
    Argued September 29, 1941
    Opinion filed February 5, 1942.
    Present: Putnam, C. J., Cabe & Q-illen, JJ.
    
    
      E. A. Neiley, for the Plaintiff.
    
      J. F. Havlm, for the Defendant.
   Gillen, J.

This is an action of contract in which the plaintiff seeks to recover the sum of $1800. for the loss of a Kerman rug which was shipped on May 26, 1939, by the plaintiff from his place of business in New York City to the defendant in Boston via a common carrier known as Bill Rand’s Express Freight Lines. The rug was lost or stolen while in the possession of this carrier.

The plaintiff claims that this rug was shipped to the defendant on consignment, and that the defendant agreed to be an absolute insurer of the same to the plaintiff for and against any and all risks, losses, damages or expenses whatever, and liable to the plaintiff for the value agreed upon of $1800., from the time of delivery of the same at New York; and that the rug having been lost or stolen from the custody of said carrier to which it had been delivered pursuant to the defendant’s instructions, the plaintiff is entitled to a recovery of $1800.

The defendant’s answer consists of (1) a general denial; (2) a denial that he received the rug and that he agreed to assume the risk of the loss of the rug in transit; (3) a denial of signature to the agreement named in the plaintiff’s declaration; and (4) a claim that his agreement with the plaintiff was a contract for the sale of goods for the price or value of $500. or more, and that having not received the rug or given anything in earnest or in part payment, or signed any note or memorandum in writing of said agreement, recovery is barred by the Statute of Frauds.

The trial judge found that the plaintiff had not proven that the defendant had agreed that the rug was to be shipped by the carrier in question.

There was evidence that the rug was shipped under a bill of lading containing the following:

“NOTE — Where the rate is dependent on value, shippers are required to state specifically in writing the agreed or declared value of the property.
The agreed or declared value of the property is hereby specifically stated by the shipper to be not exceeding $125.00 per 100 lbs.”

The bill of lading stated the weight of said rug to be one hundred and sixty-one pounds.

The trial judge filed a memorandum of findings and rulings and the pertinent parts are here set forth.

“MEMORANDUM OF FINDING’S AND RULINGS
“I find that on May 25, 1939, the plaintiff and defendant entered into an agreement whereby the plaintiff was to ship to the defendant, on ‘consignment’, a Kerman rug of a value of $1800.
“I find that on May 26, 1939, the plaintiff delivered said rug into the custody of a carrier, Bill Rand’s Express Freight Lines, Inc., for the purpose of delivery thereof to the def endant, under a straight bill of lading, freight charges collect. I find that the plaintiff made to the carrier a declaration of value of the property covered by said bill of lading, and that the plaintiff expressly limited said declared value to $125. I find that the rug was lost or stolen on May 26, 1939, while in the carrier’s custody. If material, I find that the loss of said rug did not occur as a result of negligence on the part of eithér the plaintiff or the defendant.
“I find and rule that the transaction of ‘consignment’ was not a contract to sell or a contract of sale within the Statute of Frauds (G-. L. 106, sec. 6). I find and rule that the transaction of ‘consignment’ was a bailment, subject, in part, to the terms and conditions hereinbefore set forth.
“I rule that under the circumstances of this case, where the plaintiff knew that the defendant was to become an absolute insurer of the rug to the plaintiff ‘for and against any and all risks, losses, damages or expenses whatever’ from and after ‘the time of the delivery of said merchandise at New York’, the plaintiff was under an implied duty either to (a) reasonably notify the defendant of the intended time and place of delivery to the carrier in order that the defendant might insure or indemnify himself' against the risk, loss or damage to the rug while in the carrier’s custody, or (b) to declare the full agreed valuation of the rug to the carrier, in order to protect the defendant against the risk of loss or damage to the rug while in the carrier’s custody.
“I rule that under the circumstances of this case, the defendant was entitled to reasonable notice of the time and place when and where his liabilities as bailee under said agreement were to commence, in order that he might protect his interests. Even if said delivery to said carrier was made at the defendant’s request or direction, I find that the defendant did not authorize the plaintiff to limit the declared value of the rug to $125.
“I find and rule that the plaintiff violated his duty to the defendant by limiting the declared value of the rug to $125., and that the plaintiff’s said breach of duty relieved the defendant of any liability to reimburse the plaintiff for any loss.
“I rule that under the circumstances of this case, the defendant was entitled to reasonable notice of the time and place when and where his liabilities as bailee under said agreement were to commence, in order that he might protect his interests.”

The trial judge found for the defendant.

The plaintiff claims to be aggrieved by the refusal of the trial judge to grant requests for rulings numbered 1, 2, 12 and 13 and by certain voluntary rulings of law.

The trial judge found that the defendant entered into an agreement whereby the plaintiff was to ship to the defendant on “consignment” a Kerman rug of the value of $1800.00 and there was evidence to warrant this conclusion.

In both counts of the declaration the plaintiff alleges that by reason of the defendant’s instructions or request the rug was shipped via Bill Band’s Express. On this proposition the trial judge found the contrary. We hold there was no error in the denial of the trial judge of requests numbered 1, 2 and 12 because they are all premised on the matter of delivery to the above-named carrier as a result of the direction and request of the defendant while the trial judge found otherwise on evidence that warranted the conclusion. Nor was there error in the denial of request numbered 13. The bill of lading itself would permit the conclusion that the consignor (plaintiff) fixed the value of $125.00. It was part of his agreement with the carrier. He is bound by it.

The plaintiff requested rulings that the transaction was not a sale but was a bailment and both of these requested rulings were given. The plaintiff cannot now complain on these points. Woodman v. Haynes, 289 Mass. 114, Taylor v. National Theatre Co., No. 27383 of the Municipal Court of the City of Boston, (50 App. Div. 14).

The fact that there was not a bailment here does not prejudice the plaintiff. He asked for the ruling and received it.

That there could not have been a bailment is obvious as the defendant at no time had notice of his possession of the rug either directly or through an agent. D. A. Schulte v. North Terminal Garage Company, 291 Mass. 251 at 256, Bailments, Van Zile, 2nd Ed., sec. 18, Bailments, Schouler, 2nd Ed. secs. 32, 94.

We find no error in the voluntary rulings of law of the trial judge.

It was proper to rule that the plaintiff should (a) reasonably notify the defendant of the intended time and place of delivery to the carrier in order that the defendant might insure or indemnify himself against the risk, loss, or damage to the rug while in the carrier’s custody or (b) to declare the full agreed valuation of the rug to the carrier, in order to protect the defendant against the risk of loss or damage to the rug while in the carrier’s custody. While we have found no Massachusetts decision exactly on the point it has been generally held that the party shipping goods is obliged to preserve the remedy a party to whom they are shipped may have against a carrier and the failure to notify the consignee of the shipment or to declare the full amount of the article delivered to the carrier is a breach of duty that the consignor owes to the consignee. Williston on Sales, Second Edition, sec. 595.

In Miller v. Harvey, 221 N. Y. 54, Justice Cardoza laid down the proposition that it is the duty of one shipping goods to safeguard the interests of the defendant as sedulously as his own. And while the decision was under a New York statute relative to the sale of goods he indicates the statute is declaratory of the common law and we know of no sound reason why the rule should be any different in a transaction of the nature of the one in the instant case.

In the New York case, a vendor shipped goods of the value of more than $50.00 without declaring their value, thus relieving the express company from liability for more than $50.00 and it was held that the seller must not sacrifice the buyer’s right to claim full indemnity from the carrier. See also Clarke v. Hutchins, 14 Bast 475, Reid v. Fargo, 241 U. S. 544.

No error being found in any of the rulings of law of the trial judge the order is — Report dismissed.  