
    A. C. Cheney Piano Company, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.
    (Supreme Court, Rensselaer Trial Term,
    April, 1914.)
    Carriers — liability of—provision of bills of lading — waiver of— action by consignor for damages — what is reasonable time for delivery.
    The doctrine of waiver applies to all cases of forfeiture.
    A provision of a bill of lading, that unless a written claim for loss of goods by reason of failure to make delivery of same is made within four months after a reasonable time for delivery has elapsed the carrier shall not be liable, is waived where the carrier after the expiration of the four months’ period, at the suggestion of the consignor, undertakes to trace the goods and invites the presentation of a claim for loss under the contract.
    Where, in an action by a consignor for damages, it appears by the correspondence between him and the carrier that the latter conceded its obligation to pay, plaintiff is entitled to a judgment for the value of the goods at the time when they were delivered for shipment.
    Action against a carrier for damages for nondelivery of goods shipped by plaintiff.
    Countryman, Nellis, Du Bois & McDermott, for plaintiff.
    Visscher, Whalen & Austin, for defendant.
   Hasbrouck, J.

The plaintiff on the 24th and 31st days of. January, 1910, delivered certain piano actions valued at $440.25 to the defendant at Castleton, N. Y., for shipment to the Starr Piano Action Company, Bichmond, Ind. The defendant gave the plaintiff upon receipt of such goods its bill of lading containing among other terms the following:

“ Conditions or Shipment.
“ Claims for loss * * * must be made in writing to the carrier at the point of delivery or at' the point of origin within four months after the delivery of the property or in case of failure to make delivery then, within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable.”

The obligation of the carrier to the consignor is to carry his consignment to the consignee whether the carriage shall all be performed by the contracting carrier or other carriers it may call to its agency in the performance of its duty. This is so no matter by what authority the duty is imposed—whether it arises from the contract of the parties or the provisions of the state statute — or the federal statute. No delivery was made of the piano actions. They were lost. The record before us shows no written communication between the plaintiff and defendant until July 11, 1910. On that day, the plaintiff wrote the defendant’s freight agent at “the point of origin,” Castleton, N. Y., as follows:

“ Please have the following tracers put through and return to us at your earliest convenience. We have once before asked you to trace these shipments and as our customer claims that they have not received the three case's of actions we are anxious to show that delivery was made * * *.
“ Yours very truly,
“ Cheney Piano Action Co.”
Tracers.
“ * * * Trace and show delivery of case of actions No. 94 shipped January 24, 1910.
“ * * * Trace and show delivery of case of actions No. 96-97 shipped January 31, 1910 * *

Mr. Willis forwarded a tracer letter to the Chicago, Cincinnati and Louisville Bailroad Company hut could not learn from that company that delivery had "been made.

On July sixteenth in reply to the letter dated July 11,1910, the division freight agent wrote the plaintiff:

" I beg to acknowledge the receipt of your letter of July 14th regarding deliveries in Chicago. I have today taken the matter up with our Chicago people to see what we can do to effect the delivery required * * *"
(Signed), Alan McMichael, Div. Freight Agt.”

Again, on August 3, 1910, the defendant wrote the plaintiff:

" I beg to acknowledge receipt of your letter of August 2nd regarding two cases of actions shipped by you January 24th and 30th last consigned to the Starr Piano Co., Bichmond, Ind., which you state have not arrived at destination. It would seem that if these shipments have not yet been received at destination they must have been lost in transit. My suggestion is that you duplicate the shipment and enter claim against our road * *

On August fourth the plaintiff wrote the defendant:

“ Enclosed please find invoice covering three cases of piano actions conveyed to Starr Piano Company, Bichmond, Ind., which they have not received and we have not been able to get a tracer back * * *. We feel that it is no more than fair that this claim should be immediately allowed. We have sent three or four tracers after the shipment but have not received them back so undoubtedly the shipments were lost in transit

■ Stipulation 14 of the parties to the action reads as follows: ' .

‘ ‘ The average time for the delivery of merchandise shipped in less than carload lots from Castleton, N. Y., to Richmond, Ind., is from fifteen to sixteen days.”

Assuming that a reasonable time for the delivery of.these goods would have been thirty days, the four months would have commenced to run as to the last shipment at the expiration of March 2, and would have expired July 2, 1910. The defendant claims that the bar of the limitation contained in the bill of lading within which claims for loss might have been presented has fallen. The plaintiff’s answer to such claim is, conceding it to be true, the defendant has waived it .by undertaking to trace the goods and inviting the presentation of a claim for loss under the contract. The hunt for the goods was undertaken by defendant in its own interest, for if it could find the goods it could save itself from claim for damages and payment. The correspondence shows further that the railroad company had conceded its obligation to pay.

Nevertheless, defendant eventually took the stand that it was not liable because of the more than four months’ delay to make the claim. It claims that there was no waiver in its action in sending out the tracers and in inviting the plaintiff to file its claim. It relies on Atlantic Coast Line R. R. Co. v. Bryan, 65 S. E. Rep. 30, which says: “A waiver to operate as such, must arise * * * either by contract, or estoppel. If by contract, it must be supported like any other contract by a valuable consideration * * * if estoppel by conduct is relied on, the party sought to be estopped must have caused -the other party to occupy, a more disadvantageous, position than he would have occupied but for that conduct. * * * And that an attempt by a carrier to find a lost shipment after its exemption from liability has attached and become a vested right by reason of the failure to present a claim therefor within the time and at the place stipulated for in the bill of lading does not constitute a waiver of its right to claim such exemption if the goods should not be located.”

The facts as far as the court has found them are that the four months had expired before July 11, 1910. Then the defendant had the right to say you have not presented your claim in time. You have forfeited your right to make a claim against us for the actions. If it had taken that position there might have been an end to its trouble depending upon what should be held a reasonable time ‘ ‘ for delivery. ’ ’ But a more prudent way suggested itself to the company. It sought to find the goods, in recognition of its obligation to the shipper, by sending out several tracers and by inviting the filing of a claim. If it had traced the goods to discovery or delivery it would have freed itself from claim and loss. It is inconsistent with the claim of immunity from liability that it should recognize any obligation to the plaintiff after the expiration of the four months. From the conduct of the defendant we think the intention to waive the four months’ provision of the bill of lading is fairly inferable. The lapse of time does not pay the debt, perform the contract nor deliver the goods. The moral obligation survives the limitation. The courts of our state seem to be at variance with the authorities relied upon by the defendant. Waiver may rest in a donative purpose and be without consideration. It need not be based upon a new agreement' or estoppel. Waiver may be claimed after knowledge of the forfeiture if in any negotiations or transactions between parties the claimant recognizes the continued validity of the contract, does any act based thereon or requires the other party to do some act or incur some trouble or expense.

Earl, J., says : “Forfeitures are not favored in the law, and this doctrine of waiver is not peculiar to insurance policies, but is applicable to all casés of forfeiture.” Titus v. Glens Falls Insurance Co., 81 N. Y. 419.

Judgment for the plaintiff for $440.25.

Judgment for plaintiff.  