
    Frank N. Isham, Respondent, v. Erie Railroad Company, Appellant.
    Fourth Department,
    May 2, 1906.
    Common carrier — negligence of carrier of goods, in stopping goods in transit to consignee at request of third person—'waiver of notice ¿of claim of damage — evidence — measure of damage.
    When a contract for the carriage of goods names the consignee and the place of delivery with a direction to “notify ” third persons who were intending purchasers from the consignee, it is the duty of the carrier to forward the ■ goods. . to their destination, and if, solely on the request of the intending purchasers and. without the consent of the consignee, the carrier holds the goods in transit seven days so that they are injured by'frost at a period of year when frost was likely, the carrier is liable to the consignee for negligence as well as for a breach of contract.
    /Xlthough as a general rule the liability of a carrier terminates upon proper delivery to-a succeeding carrier, the rule-does not obtain when a carrier by contract agrees to-deliver the goods without charge to" the, shipper at a'certain dock where- it keeps a representative, though beyond the terminus of its line. Moreover, a stipulation in the contract that the carrier is not to be liable after the property is ready for delivery to the next carrier or to the consignee, does not relieve the carrier from liability for goods withheld in transit and injured by its negligence as aforesaid. /
    Although the contract of carriage stipulates that claims for damages "must be presented within thirty days, a carrier who "deliberates, for three months upon a claim presented after the expiration of the timelimit and finally rejects it on the merits without reference -to the thirty-day limitation, waives such limitation. Moreover, the limitation does not cover claims founded on .negligence.
    The rule of-damages in cases of injury to property is founded on-the principle of indemnity and is subject to variation according to circumstances. Hence, when there is no recognized market for potatoes frozen through the negligence of the defendant, it is not error to admit evidence of the price realized by the consignee, who placed them in the hands of a reputable- commission merchant for •sale,.as such proof tends to show the amount of the loss.
    Williams, J., dissented.
    Appeal by the defendant, the Erie Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Livingston on the 25th day of September, 1905, upon the decision of the court, rendered after a trial at the Livingston Trial Term, the jury having been discharged.
    The action is to recover damages for negligence and the charge is that the defendant improperly detained at Jersey City two -carlqads of potatoes belongiyg to the- plaintiff until they were frozen. At the close of the evidence, by consent of the parties, the jury was discharged,. and the issues submitted to the court. A decision was made containing findings-of fact and conclusions of law. ¡Nearly all of the facts were stipulated and there was no conflict in those proved. ' - - ’ •
    
      F. A. Robbins, for the appellant.
    
      Royal R. Scott, for the respondent.
   Spring, J.:

The defendant’s railroad extends from Avon, in the State of Hew York, to Jersey City, H. J. The defendant received from the plaintiff at Avon two carloads of potatoes; one February 2, 1899, which reached Jersey City on February fifth, and the other was received February fourth, arriving at Jersey City on-the sixth. These carloads were-to be transported to Palmer’s dock, Brooklyn, which is reached by lighters from defendant’s eastern terminus at Jersey City,

The plaintiff was the consignee named in each bill of lading and it contained the direction, “ notify Casey & Bosenblum,” who were the intended purchasers and whose place of business was in Brooklyn. The destination noted on' the bill of lading was “ Palmer Dock, Brooklyn, H. Y.”

The evidence does not precisely disclose the defendant’s-connection with the dock mentioned. It does appear that Carpenter, the chief clerk in the management of the dock and employed by its owner, was also the agent of the defendant, and also that there was no lighterage charge for transferring the freight from Jersey City tp the dock. On the morning of the sixth a list of the cars in the terminal yards of the defendant at Jersey City in transit for Palmer’s dock, -and which included the two carloads of potatoes consigned to the plaintiff, was delivered to Carpenter by the defendant. He promptly notified Casey & Bosenblum of the arrival of the cars at Jersey City, and they requested the defendant to hold said cars at Jersey City subject to their orders, as “they were overstocked and fiid not want them brought over on that account, and that the weather was against the market, and, therefore, it would suit them better -to leave them in Jersey City.” The defendant acceded to this request until February thirteenth, when “ said cars were ordered to Palmer’s Dock, but owing to the severity of the weather at .that time, it was impossible for defendant to'flat them until February 18th, on which date they reached Palmer’s Dock and were refused by said firm of Casey & Bosenblum.”

The potatoes when received at Palmer’s dock were frozen, and the damage to them occurred during the severe storm between the thirteenth and eighteenth of February. After the refusal of Casey & Bosenblum to accept the potatoes the plaintiff at Avon was-notified by wire, went to Brooklyn and caused the potatoes to be sold by a commission house.

The bills of lading contain the provision, If the word order ’ is written immediately before or after the name of the party to whose order the property is consigned, the surrender of the Bill of Lading, properly indorsed, shall be required before the delivery of the property at destination, as provided by Section 9 of. the Conditions of the Uniform Bill of Lading, on the back hereof■”

The form of shipment was “ Harked Consignee, Order F. H. Isham. Destination Palmer Dock, Brooklyn, H. Y.” The import of this method was that the goods were shipped to be paid for on delivery, and, in order to make this plan effective, the bills of lading must be produced before the potatoes could be turned over to Casey Bosenblum. The plaintiff at the time of the delivery of the potatoes to the defendant at Avon caused drafts to be made on Casey & Bosenblum and attached to the bills of. lading, and they were, by the local bank at Avon, transmitted to a bank- in Brooklyn to be delivered to Casey and Bosenblum upon the arrival of the goods and upon acceptance and payment of the drafts.-

Ordinarily where goods are received by a common carrier for transportation over a connecting line its liability terminates upon the proper delivery to the succeeding carrier. (Farnsworth v. N. Y. C. & H. R. R. R. Co., 88 App. Div. 320.)

That rule does not obtain in the present case. The evidence is sufficient to warrant, the finding of fact made by the court that the defendant undertook to transport these potatoes to Palmer’s dock. The defendant kept its representative at "this dock. The transfer was without charge to the shipper, and the first stipulation entered into concedes that the potatoes were “"to be transported by the defendant to Palmér’s Dock, Brooklyn, Hew York.”

Irrespective of that question, however, we think negligence is fairly imputable to the defendant. The plaintiff was the consignee ■ of the goods so the defendant was apprised of .his ownership. The defendant knew that the destination was Palmer’s dock, and it certainly had no authority, while the potatoes were in transit, affirmatively to interfere with their "onward course. The direction in the bills of lading to notify Casey & Bosenblum. did not authorize the defendant to change its. contract with the plaintiff.

Tlie potatoes were at Jersey City February sixth, and by ordinary carriage they would réach Palmer’s dock On the same day. The interests of Casey & Bosenblum and the plaintiff were not'identical. The defendant without communicating with the plaintiff followed the request of Casey & Bosenblum, and .held the -potatoes at its yard at Jersey City for a week, during any day of which they could have been readily delivered at their destination.

They departed from their obligation to the consignee and recognized without warrant Casey & Bosenblum as the consignees, ignoring the plaintiff entirely. The direction to notify Casey & Bosenblum did not justify a notification while the goods were.sra route. .The. object of the notice prescribed in the way bills was to advise the proposed, purchasers that the potatoes had arrived at their destina tioii, and-were ready for delivery to them upon the production of the -bills of lading. In that way the sale would be copsummated. Notification while the goods were in transit subserved no such-purpose. Much less did the direction imply that the defendant was to follow the request" of Casey & Bosenblum in the matter of the shipment of the potatoes while in transit. The 'interest of Casey & Bosenblum did not become effective until they had in their possession the bills of lading, and the defendant understood those instruments would not be delivered until the .goods were at Palmer’s dock. Casey & 'Bosenblum asked for the delay because the market was “ overstocked * t * (and) the. weather was against the market,” indicating that the request was solely for their benefit.

The direction to notify Casey & Rosenblum was notice to the defendant that they were not consignees. (Furman v. Union Pacific R. R. Co., 106 N. Y. 579; North Penn. Railroad v. Commercial Bank, 123 U. S. 727, 736.)

In the first case cited, 100 bags of peanuts were shipped from Norfolk, Va., to Denver, Col. The- bill of lading contained the following: “Marked, Y- order notify Zueca Bros.” No consignee was named. The defendant delivered the goods to. Zueca Bros, at Denver without the production of the bill of lading. The court in construing the effect of this clause said : “ Here is no statement that Zueca Brothers are the consignees. The very presence of-the word notify, in its relation to. them, shows that they are.-not "intended as the ‘ consignees. If they were, the word is wholly unnecessary. It is the duty of the carrier to notify the consignee of the arrival of the goods. (Price v. Powell, 3 N. Y. 322.) To place in the bill of lading a direction to notify certain persons to whom, if consignees, it was the carrier’s duty to deliver, or at least to notify of the arrival of the goods, is a plain notice that (in the absence of further directions) they, are not the consignees.”

The bill of lading contains the. provision common to such contracts that “ no carrier shall be liable * * • * after said property is ready for delivery to the next carrier or to consignee.” • v

The counsel for the appellant invokes the rule adverted to that the liability of the defendant terminated when the potatoes .were ready for delivery to the lighters. In addition to' the facts enumerated, showing, as we believe, that the principle is not applicable to this case, there is another adequate reason why the rule does not obtain. We think the evidence warrants the conclusion reached that the defendant is chargeable with negligence-in withholding the delivery of these potatoes in Jersey City for seven days. It was .in the-month of February when freezing weather was probable. In adopting the request of a third party in such circumstances and not delivering the potatoes in the usual way, the defendant is chargeable not merely with breach of its agreement,'but with negligence.

The exemption from liability urged does not exonerate the defendant from the exercise ó.f a fair degree of diligence as the carrier of the goods of the shipper. (Mynard v. Syracuse, etc., R. R. Co., 71 N. Y. 180 ; Rathbone v. N. Y. C. & H. R. R. R. Co., 140 id. 48 ; Jennings v. Grand Trunk R. Co., 127 id. 438, 450.)

And there will be no enlargement of the limitations to relieve a common carrier from responsibility for loss resulting from its negligence. (Cases cited supra ; Security Trust Co. v. Wells, Fargo & Co., 8l App. Div. 426, 431; affd. on opinion below, 178 N. Y. 620.)

Condition 3 on the bill of lading contains the following:: Claims for loss or damage must be made in Writing to the Agent at point of delivery promptly after arrival of the property, and if delayed for more than thirty, days after the delivery of the property, or after due time for the delivery thereof no Carrier hereunder shall be liable in any event.” Ro claim was presented to the agent of the defendant at Palmer’s dock or at Jersey City. On.the 21st of June, 1899, more than three months after the delivery of the potatoes at Palmer’s dock, a written claim was presented to the division freight agent of the defendant, at Rochester. . This officer rejected the claim in a letter September 16,1899; setting forth his reasons at large, and which are substantially the same as are now urged to defeat the claim.. The omission to present the claim within thirty days was not one of the reasons assignéd for" its rejection. The. defendant deliberated upon the claim for three months, and placed its refusal to pay on the merits, and thereby yvaived the thirty-day limitation. (Falkenberg v. Erie R. R. Co., 28 Misc. Rep. 165 ; Frankfurt v. Weir, 40 id. 683; Jennings v. Grand Trunk R. Co., 52 Hun, 227.)

"We doubt whether the limitation applies to a case like the present. The provisions of the bill of lading extending immunity to the defendant from, liabilities-imposed upon it as a common carrier, not including acts of negligence, the limitation prescribed ought not to embrace loss due to its lack of care. (Security Trust Co. v. Wells, Fargo & Co., supra ; Porter v. Southern Express Co., 4 S. C. 135 ; 16 Am. Rep. 762.)

The plaintiff while in Brooklyn delivered the frozen potatoes to a reputable commission merchant, and realized from the two cars $121.46. The evidence of this transaction was objected to on the ground that it did not tend to establish the proper measure of damages. The value of the property at the time and place of shipment is the basis, according to the conditions of the bill of lading (condition 3); and the value át Avon and the ' quantity of potatoes loaded are conceded. • The damages as awarded were ascertained by deducting from the stipulated value the amount received by the plaintiff from the" commission merchant.

If a carrier is liable for damages for delay in the .delivery of goods the measure of damages is the difference in value of the goods at the time and place they should have been delivered and' the time when in .fact they were .delivered. (Sherman v. Hudson River R. R. Co., 64 N. Y. 254.)

So if there is no delivery at all, the carrier is liable as a general rula for the value of the goods at the place where delivery was to be made with interest thereon (Sedg. Dam. [8th ed.], § 176), although the rule is not an inflexible one. The measure in each of these cases is easily fulfilled and carries out the principié of indemnity to the shipper, which is the controlling principle where damages for loss of personal property are recoverable. Likewise where there is a breach of an executory contract to sell and deliver personal, property, the measure of damages is usually the difference between the contract price and the market price when and where delivery was to be made. (Messmore v. N. Y. Shot & Lead Co., 40 N. Y. 422, 427.)

Each of these rules is of general application, but subject to variation in order to compensate the loser for damages' sustained at the instance of one who was responsible for the loss.

In the present instance the plaintiff was obliged to dispose of the potatoes promptly in order to lessen the damages as far as practicable. There would be no definite market for frozen potatoes. He accordingly turned them over to a -reliable commission merchant known to him and, accounted for what he received. ¡No question is raised as to his failure to-respond fully for what he derived from the commission merchant, and no claim is made that the latter was remiss in anypvay. ¡Keeping in mind-the condition of the potatoes, the necessity for prompt action and the liability of the defendant to make whole the'plaintiff for his loss, we think the rule adopted was just to both parties. The generai rule invoked by the counsel for the appellant xcould not prevail for it is clear the plaintiff would not be able to establish a fixed market value in ¡New York or Avon for potatoes injured as these were. Whether of any value at all, depended upon the ability of the merchant tp peddle them out speedily.

What the plaintiff “ realized ” from the sale is some evidence of its value, like evidence of the price obtained at a private sale; and if there is .no other proof on the subject, is sufficient to warrant a recovery of that sum. (Parmenter v. Fitzpatrick, 135 N. Y. 190 ; Matter of Johnston, 144 id. 563, 565.)

It is important to note that the only objections lo the evidence were that it was “incompetent and not the proper measure of .damages.” It was competent to show what the plaintiff realized, for in that yray the extent of his loss would be ascertained: The net sum realized by him was the proper measure of damages, providing the transaction by the commission ‘merchant. was honest and he obtained all that the potatoes were fairly worth, and made no overcharge for his services. If the claim had been made that the merchant did not realize a fair price, or did not account honestly, or that there was a market price for frozen potatoes, these objections might have been met and explained. - There was no objection to the mode of proof and no contradictory evidence given, and in all the circumstances we think there was a proper basis for the damages awarded.

The judgment should be affirmed, with costs.

All concurred,' except "Williams,’J.,. who dissented, and Hash, J,, not voting.

Judgment affirjned, with costs.  