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Fein v. Weir

Supreme Court of New York, Appellate Division

December 24, 1908


[114 N.Y.S. 427] Cravath, Henderson & De Gersdorff (Joseph P. Cotton, Jr., of counsel, and Kenneth B. Halstead, on the brief), for appellant.

Milton Dammann, for respondents.



Plaintiffs are manufacturers of clothing. On the 7th of February, 1906, they made up five packages containing suits and jackets addressed to five different consignees, two at Nashville, Tenn., one at Baltimore, Md., one at Canton, Ohio, and one at Newark, N. J. The value of the goods so packed was $728, and the value of each [114 N.Y.S. 428] package was over $50. These goods were made to order according to sample and according to number. The testimony is:

" The orders for the goods which are shipped to the respective people contained in the packages which are the subject-matter of this action were taken by my salesman. He took these orders through showing samples, and if the goods were satisfactory and up to the customer's way of thinking that they were all right as far as style and everything was concerned, and the price, they were bought. There was no written memorandum or anything made out and signed by the customer himself."

The plaintiffs have been sending goods by the Adams Express Company and other express companies for many years. The wagon of the express company was accustomed to call at the plaintiffs' place of business for express matter. On the day in question, the packages were taken down to the street in expectation of the regular call. The wagon not coming, an employé of the plaintiffs' went to the office of the Adams Express Company and told them to send up a wagon, and the agent of the company said they would. In about 15 minutes thereafter, a wagon of the Adams Express Company arrived in charge of a driver wearing the uniform and cap of the company with its name thereon. The packages were delivered to this driver, as well as other packages, by the employés of another concern having its place of business in the same building as the plaintiffs. The plaintiffs had a book of receipts of the company and had made out a receipt for the five packages duly entering the names of the consignees and the destination of the packages. This receipt was the ordinary receipt of the express company and bore at the top, " The company's charge is based upon the value of the property which must be declared by the shipper," and, among the terms of the contract, the following:

" In consideration of the rate charged, for carrying said property, which is regulated by the value thereof, and is based upon the valuation of not exceeding $50, unless a greater value is declared, the shipper agrees that the value of said property is not more than $50 unless a greater value is stated herein, and that the company shall not be liable in any event for more than the value so stated, nor for more than $50 if no value is stated therein."

No value was stated upon the receipt, but there appears stamped thereon by a rubber stamp in front of the entry of each package, " Value asked and not given." This receipt was signed by the driver, " H. Katz," and in a circle the numeral " 6," and delivered to the plaintiffs.

About three days after this occurrence, the plaintiffs having received telegrams from their customers, an employé went to the office of the Adams Express Company located on Fourteenth street between Fifth avenue and University place, where he had been many times before, and saw an agent of the company whom he had seen in the course of business and conversed with him upon business with the company many times. The witness told the agent that they had heard from the different people to whom they shipped the goods that they had not received the goods yet, and asked him to look into the matter, and the agent said he would. A few days later this agent called at the plaintiffs' place of business with another man and stated to the witness that this other man was a detective for the company:

[114 N.Y.S. 429] " He asked me how many packages we shipped on February 7th, and I told him, and he asked me all the particulars about it, how we shipped it, and who took the packages down, and the description of the man who received the packages, and questions similar to that."

Another employé of the plaintiffs testified: That he went to the office of the company about these particular packages, and saw the same agent, and told him that the people to whom he sent the goods had not received them, and that they sent a notice; that the agent said in reply that he would trace the goods; that subsequently this same agent told the witness that he should go down to the office at Canal street and see if he could identify the man who signed the receipt; that they had traced the packages already, and they did not receive them; that the Adams Express Company had not received those particular packages; that the witness went to the Canal street office with two men from other concerns who had delivered goods on the same day; that they had a lot of men lined up there, and the witness and his companions were asked if they could identify this man who took the packages; that they could not identify any one of the men as the driver; that they went to the stable of the company and were shown the different horses, but that the witness could not identify the horse; and that they went to another place and were asked if they could identify any man who came out of there as the one who had taken the packages which they were unable to do.

One of the plaintiffs testified that after the occurrence of February 7th, and after their employés had gone to the office of the company to complain about this merchandise not having been received, he went himself and had an interview with the same agent:

" When I called there the first time, I asked him about these packages. It was about six days after we had shipped the goods. He says to me, ‘ Well, I guess they were stolen by somebody,’ and I says, ‘ You had better trace those things up, because these goods have been ordered by people, and they are seasonable goods, and unless they are delivered quickly they are worthless.’ ***So he says he would look it up and trace it. After the time of this visit, I did not again see this man for four or five days. I told him the same thing, that I have got requests from these consignees, that these goods haven't been delivered, and that we must replace them with other goods, as they were very much in need of this merchandise that we shipped them, or we must replace them. And I told him that, unless he could locate these goods immediately, we wouldn't be able to use the goods, and we will have to replace them by others, and he says to me, ‘ I guess those goods were stolen by somebody.’ He says to me, ‘ I guess those goods were stolen.’ ‘ Well,’ I says, ‘ If that is the case, we will have to replace them by new merchandise, and, if these goods show up later on, we won't be able to use them. They won't be worth as much money then as they are to-day.’ He told me he had put a tracer on those packages, and they couldn't locate them, and that they would send a detective to find out-locate the party that had signed for these packages-but they couldn't trace them. He told me that these packages were not received at that office, the Fourteenth street office, and that he knew that they weren't received there."

There was other corroborative evidence as to the delivery of the packages to the driver and the subsequent attempts at the request of the company of identification of the man and horse, and one witness identified the horse.

[114 N.Y.S. 430] The defendant produced a witness who testified that she knew the name of every driver, helper, or extra man employed by the express company, and that on the 7th day of February, 1907, there was not a driver in the employ of the company by the name of H. Katz.

The learned court charged the jury, the defendant having denied delivery to it, that:

" It is a case in which one of the crucial points that must be considered by you is whether or not there was an actual delivery to the agent of the defendant.*** The plaintiffs therefore must, by preponderance of evidence, convince you: That these goods were in fact delivered to an agent of the defendant company; that, as a matter of fact, after being so delivered, they were converted or stolen by some agent of the company; and that by reason of such delivery to an agent of the company, and such wrongful and illegal act on the part of the servant of the company, the plaintiffs sustained their damage.*** If you find that the goods as a matter of fact were delivered to an agent of the defendant, and if you further find that as a matter of fact the person who acted for the defendant, the agent of the defendant, stole the goods, then I charge you the defendant would be liable for the acts of its agents in respect to that particular act, because this man, if he were an agent of the company, was acting within the scope of his employment, and plaintiffs would be justified in handing him the goods, and any act of the agent would be an act for which this defendant would be liable. Corporations and individuals alike are liable for the acts of persons they employ to do a certain line of his business, providing the act is within the scope of such person's authority."

Alluding to the provision of the receipt limiting liability to $50, where the value was not declared, the court said:

" In this case, however, the jury would be justified in disregarding this particular clause, provided they find that the goods so delivered to the defendant were stolen by an agent of the defendant. In other words, a party cannot make a contract which, by limitations of this kind, would relieve him from the responsibility of a willful or tortious act of the servant."

The jury returned a verdict for the full amount proved, $728, and from the judgment entered thereon, and the order denying ...

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