Lienan v. Dinsmore

Loew, J.* An express company may be deemed a common carrier, and, like the latter, may restrict or limit their liability by express contract; but it may well be [212] doubted whether they can do so by a mere printed notice or condition on the receipt, which the party sending goods by or otherwise employing them may or may not have seen (Dorr v. New Jersey Steam Navigation Co., 11 N. Y., 485 ; Bissell v. New York Central R. R. Co., 25 N. Y., 442 ; Belger v. Dinsmore,34 How. Pr., 421). Assuming, but without deciding, that the defendants in this action could not thus limit their responsibility, or if they could, that the plaintiffs are correct in their views, and that the defendants, by their subsequent acts, must be deemed to have waived the condition in the receipt which they claim exempts them from all liability for the negligence of the Southern Express Company, to which they transferred the draft, and that- they are estopped from saying that they passed the same over to said company, still I do not see how this judgment ■ can be sustained. It was admitted by the plaintiffs in their complaint, and also by a certain stipulation signed by their attorney and read on the trial, that, within a few days after the delivery of the draft to the defendants, and as soon as the same could be transmitted to Memphis—to wit, on or about December" 31, 1866—and repeatedly thereafter, the agent of the Southern Express Company presented said draft for payment to the drawee, that payment thereof was repeatedly demanded, and that the said drawee neglected and refused to pay, although he repeatedly promised to do so. It thus appears to be conceded by the plaintiffs themselves, that the defendants did all that could possibly be asked or required of them in regard to transmitting the draft to Memphis, and. presenting the same to and demanding payment thereof from the drawee. Now the evidence on the part of the plaintiffs shows that they never requested the defendants to return the draft-, nor did they surrender the receipt and pay the charges, all of which was necessary, according to the [213] terms of one of the clauses in the receipt, before the defendants could be required to return the draft; and it may, therefore, be questionable whether they were boundto do so or not (Newstadt v. Adams, 5 Duer, 43 ; Manhattan Oil Co. v. Camden R. R., 5 Add. Pr. N. S., 289 ; Bostwick v. Baltimore & Ohio R. R. Co., 55 Bard., 137). However .that may be, for, as already intimated, there are also authorities to the contrary, it is quite clear that the defendants should at least have given due notice to the plaintiffs of the non-payment of the draft; and, not having done so, they must be held liable to the plaintiffs for all the damages sustained by them by reas’on of their negligence. But it seems to me that before the plaintiffs can recover more than mere nominal damages, they must show that they could, in all probability, have collected the amount of the draft, or some part thereof, from the drawee, if they had received the notice of non-payment which the defendants’ duty in the premises required them to give (Allen v. Suydam, 20 Wend., 321, 327-331). The defendants having used due diligence in endeavoring to obtain payment of the draft, and having failed, the plaintiffs must show that they could have done bettér, and that there was at least a reasonable probability that they could have collected the amount of the draft, if they had been properly notified that the same was not paid, before they are entitled to recover the full amount thereof. But having done that, I think they would be prima facie entitled to a verdict or judgment for that amount, and the onus would then be upon the defendants to prove that the real loss or damage sustained by the plaintiffs in consequence of the negligence imputed to them was not the whole amount of the draft. There is not a particle of evidence in the case to [214] show that payment of this draft, or any part thereof, could have been obtained, either by legal proceedings or otherwise, between the time when it was first presented to the drawee for payment and the time when the plaintiffs were notified of its non-payment. From the facts and circumstances of the case, the probabilities seem to me to be all the other way. In my opinion the jury should have been charged, as the chancellor thought they should have been instructed in Allen v. Suydam (supra), viz: That upon the evidence, the plaintiffs were only entitled to nominal damages ; or at least they should have been told to find only such damages as they should, from the evidence, believe it probable that the plaintiffs might have sustained by reason of the delay of the defendants in notifying them of the non-payment of the draft. The judgment should be reversed, and a new trial ordered, costs to abide the event. Footnotes [*] Present, Robinson, Loew and Larremore, JJ.