
    Earle V. Chappell, Respondent, v. New York, Ontario and Western Railway Company, Appellant.
   Appeal from a judgment entered upon a decision by the court after the submission of a question to the jury. The action was brought to recover for damages to a mixing bin shipped over the line of the appellant railroad. It was stipulated that the shipment was made April 7, 1928, that the bin was damaged in transit, that the damage amounted to $800, and that respondent was entitled to recover that amount, if anything. In the bill of lading it was provided that any action for damage to goods in transitu should be brought within two years and one day after the carrier had disallowed the claim or any part thereof. After the injury to the mixing bin an officer of the appellant instructed the plaintiff to have the necessary repairs made, which the respondent did at an expense of $1,115; and thereupon he filed a claim therefor, dated May 31, 1927. On September 20, 1927, the appellant wrote the respondent offering $800 by way of settlement, stating that this amount Would cover the liability of the company, and that it would be pleased to forward that amount, if acceptable. The appellant contends that this letter -was a disallowance of the claim within the terms of the bill of lading. Thereafter extensive correspondence was carried on between the parties, each urging the other to accept and pay a sum in settlement, but none of the letters contained any language of finality on the part of either, until December 23, 1929, when the appellant informed the respondent that no settlement whatever would be made. The court submitted to the jury the question, “ Did the railroad company do anything to reject this claim at any time before March 2, 1928?’’ which was two years and one day before the action was commenced. The jury answered in the negative, and the court adopted the finding of the jury. The verdict was justified by the evidence, and the judgment and order should be affirmed. Judgment and order unanimously affirmed, with costs. Present — Hill, P. J., McNamee, Crapser, Bliss and Heffernan, JJ.  