Rosenthal v. . Weir

Gray, J. The plaintiffs, on March 31, 1897, sold to Goldsmith & Co., in Dallas, Texas, certain silk goods and delivered them to the Adams Express Company for carriage to the buyers. They received a bill of lading from the express company ; which, among other things, provided that it should not be liable for loss or damage'“ from any cause whatever, unless, in every case, the same be proved to have occurred from the fraud or gross negligence of said express company, or their servants; nor, in any event, shall the holder thereof demand beyond the sum of fifty dollars, at which the above property forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured by them, and so specified in this receipt.” There was no insurance for special value and upon the bill of lading were stamped the words: “ Value asked and not given.” The plaintiffs, learning that Goldsmith & Co. were insolvent, on April 1st, sent to the office of the express company and demanded that it stop the goods in *151 transit. The express company’s agent agreed to do so, after ascertaining that it could be done, if the plaintiffs would pay for a telegram. They assented and the telegram was, at once, made out by the agent and sent to the agent at Dallas, where it was received. For some reason, the merchandise was, nevertheless, delivered to the buyers and the goods were never returned by them to the plaintiffs, except a small part, of the value of $37.41. Thereupon, the plaintiffs commenced this action to recover damages of the defendant, to the extent of the value of the goods, by reason of its failure and neglect to obey the directions of the plaintiffs and to return the goods. At the conclusion of the trial, both parties moved for the direction of a verdict; whereupon the court directed a verdict for the plaintiffs and the judgment upon that verdict has been affirmed. As the case comes here, all the facts must be regarded as having been determined in the plaintiffs’ favor; inasmuch as there was no request made for the submission of any questions of fact to the jury and there was sufficient evidence to support the decision of the trial judge in directing the verdict. Therefore, the question, upon this appeal, is one which relates to the measure of the liability of the defendant. On the one hand, it is claimed for the appellant that that liability is, necessarily, limited by the terms of the bill of lading to a recovery of $50.00; while, on the other hand, it is insisted for the respondents that the recovery is noFso limited, as the transaction was not governed by the bill of lading. The Appellate Division has taken the latter view; holding, in effect, that the defendant had undertaken to perform the duty, at the request of the plaintiffs, of stopping the merchandise in transit and, for their neglect to use reasonable care in performing that duty, it is liable to the extent that the plaintiffs suffered by the loss of their property. It was the view of the learned court that this undertaking of the defendant was something apart from, and independent of, the contract of carriage, as expressed in the bill of lading. I think the judgment is right. The plaintiffs had the right *152 to stop the goods in transitu, by giving notice of their claim to the carrier, in whose possession the goods were actually, or constructively. The notice need not be given to the person in actual possession of the goods and may be given to the principal. In the latter case, to be effectual, it must be given at such time and under such circumstances that the principal, by the exercise of reasonable care and diligence, may communicate it to his agent, in time to prevent a delivery of the goods to the buyer. The defendant was, as forwarder, a principal, to whom notice was properly given. The rule appears to be settled upon authority. (See Benjamin’s “Principles of Sales,” p. 180, where the authorities are collated.) -The appellant does not dispute the rule, with respect to the right of stoppage in transitu; but contends that the limitation in the bill of lading, defining the liability of the carrier by the agreed value of the goods, controls in all events. As the case comes to us, the neglect of duty, or the wrongful conduct, of the defendant in delivering the goods, after the notice, must be regarded as established. The action, therefore, is, actually, founded on the tortious act of the defendant and not on its contract of carriage. The exercise of the right of stoppage in transitu by the plaintiffs put an end to the contract of carriage and revested the possession of the property in them. They are to be regarded as having retaken the goods. (Litt v. Cowley, 7 Taunt. 169; English Ruling Cases, vol. 23, p. 411; Cross v. O'Donnell, 44 N. Y. 661, 665; Penna. R. R. Co. v. American Oil Works, 126 Pa. St. 485, 493; Reynolds v. B. & M. R. R. Co., 43 N. H. 580, 592; Jones v. Earl, 37 Cal. 630.) The relation of the parties changed. The defendant, from the time it wras notified and directed its agent not to deliver the goods to the buyers, in legal contemplation, held the plaintiffs’ property as their bailee. When, through the disobedience, or neglect, of its agent, or servant, the goods were delivered to the buyers, the defendant became liable for their then value to the plaintiffs, not upon contract, but in tort. As it was said in a case quite similar in its facts, though not *153 involving the same legal question, by Lord Chief Justice Cockburn, (Pontifex v. Midland Railway Co., L. R. [3 Q. B. Div.] 23), “ the contract of the defendants was to carry and deliver. But under the circumstances which arose, the law gave the plaintiff the right to put an end to the contract and to demand back the possession of the goods, and he did so. From that time the retention of the goods and the dealing with them by the defendants became tortious.” If the carrier delivers the goods to the purchaser after notice not to do so, it is liable in trover to the seller. (Litt v. Cowley, supra.) The bill of lading, however broad its language with respect to the value of the goods, which the holder might demand, must be read with reference to its purpose. It related to the undertaking to carry and forward the goods to the consignees, and to the incidents attendant upon its execution. The price paid for the carriage by the shippers was fixed by the reduced valuation of the goods. Upon the stoppage in transitu, the defendant held the goods as the plaintiffs’ and the law created a new relation, to which the bill of lading had no reference. The goods were to be returned to the plaintiffs. We must assume that it was possible for the defendant to do so and its failure, or neglect, was wrongful and created a liability altogether different from that which was intended to be governed by the bill of lading. For these reasons, I think the judgment appealed from should be affirmed, with costs.