Lopez v. Henry Isaacs, Inc.

Finch, J.: It appears that the plaintiff ordered certain goods of the defendant, to be shipped to him at Havana, Cuba, from New York. Instead of shipping goods to the plaintiff as required by the contract, the defendant shipped the same by inclosing them in a larger package of other goods shipped to a third party and notified the plaintiff accordingly, requesting him to claim the goods from such third party, at the same time drawing on plaintiff for the price of the goods, which draft the plaintiff paid. The goods were lost in transit and the plaintiff brought this action to recover the amount paid to the defendant. It is the defendant’s contention that the title to the goods passed to the plaintiff and that he- must bear the loss. This contention the trial court and Appellate Term [603] have sustained, upon the ground that the unauthorized manner of shipment was ratified by the plaintiff, hence this appeal. It is clear that title to the goods did not pass to the plaintiff when the goods were shipped. By thus sending the goods to a third party the defendant did not prevent itself from subsequently stopping the delivery of the goods to the extent that it would have done if delivered to a common carrier consigned to the plaintiff. It at least is questionable whether the letter in which the plaintiff subsequently acquiesced in the shipment as made was intended to or did in itself vest in the plaintiff the title to the goods which then was vested in the defendant, but the decision need not rest on this ground, for it further appears that the defendant failed to declare any value for the goods, the price of which was $752.01, and which were shipped with the other merchandise in one case, the total value of which exceeded $3,000, although the bill of lading under which the merchandise was shipped contained a provision limiting the carrier’s liability to $100 unless a higher value be declared. Section 127, subdivision 2, of the Personal Property Law (as added by Laws of 1911, chap. 571) specifically provides a remedy to protect a buyer against such negligence on the part of a seller, in the event of loss or damage in transit, namely, that the buyer may decline to treat the delivery to the carrier as a delivery to himself. In Miller v. Harvey (221 N. Y. 54), which was an action brought to recover the price of goods of the value of $95 shipped to the defendant under a contract of carriage whereby the liability of the carrier was limited to $50 unless a greater value was declared at the time of shipment, Judge Cardozo (at p. 57 said): “ Tested by these principles, the plaintiff’s case must fail. He limited the carrier’s liability to $50. He sacrificed the defendant’s right of indemnity to the extent of almost one-half of the value of the shipment. He did this when full indemnity could have been procured by an additional payment of ten cents. This was not a reasonable protection of the interests of his principal. * * * The seller who puts the buyer at the mercy of the carrier must procure the buyer’s approval or assume the risk himself.” The foregoing facts concerning the failure to declare the value of the goods shipped appear from the original shipping receipt, which was introduced in evidence by the defendant upon the trial, and it fairly appears that the plaintiff had no knowledge of said omission on the part of the defendant at the time he acquiesced in the shipment of the goods to a third party instead of direct to him. There could not, therefore, when the plaintiff was wholly ignorant of the defendant’s negligence, have been any waiver of his rights in this respect. It is contended by the respondent, [604] however, that this point should not now be considered, inasmuch as it was not raised upon the trial. As before stated, the fact that there was no declaration of value, notwithstanding the aforesaid limitation of the carrier’s Uability, appears from the bill of lading introduced in evidence by the defendant itself, who, therefore, is bound by what appears upon the face thereof. As was said in Burke v. Erie R. R. Co. (134 App. Div. 413, 419): “ Moreover, the plaintiff having offered the shipping order in evidence was bound by its terms, and defendant was entitled to the benefit thereof.” It is not now claimed by the respondent that the facts are otherwise than as shown by the shipping receipt. There was thus no issue of fact upon this point presented at the trial, but solely a question of law as to the plaintiff’s rights under the law. While the specific section of the Personal Property Law was not referred to upon the trial, nevertheless its application can fairly be deemed to have been invoked by plaintiff’s motion for judgment at the close of the case upon the ground that there had been no proof of delivery to him. It also is alleged by the appellant without contradiction that this question was presented to the trial court in the briefs upon the motion for judgment, and to the Appellate Term. In any event, since it cannot be controverted that only. a question of law exists from the undisputed facts, this court may and should consider the same. Having reached this conclusion it does no harm to note, as showing the practical construction put by the defendant upon the question of ownership of the goods in question, that the defendant brought an • action against the carrier through whom the goods were shipped, in which it sought to recover as owner the value of said goods. It follows that the determination of the Appellate Term and judgment of the Municipal Court should be reversed and judgment directed for the plaintiff, with costs in all courts. Clarke, P. J., Smith and Martin, JJ., concur; Merrell, J., dissents.