(dissenting) In the bargain made by the parties and evidenced in writing, under which the wares were shipped and their transportation was undertaken, the plaintiff forefended any liability on the part of the defendant for loss or damage not claimed within thirty days after due time for their delivery. Making no claim within that time, the shipper may not rightly recover for any loss or damage herein, for neither the Oity Court nor this court may enlarge the undertaking of the other party to the bargain. I can find nothing in the case amounting to a statement by the defendant’s agent, upon the occasion of the plaintiff’s call at the company’s office in Hew York on the thirtieth and last day, that the goods were in the defendant’s possession, in Hew Haven, or that any change was made in the contract, which, by its terms, could not be altered without the special .notation of the agent thereon. Marrus made the mistake of taking out a nonnegotiable receipt, with his name as consignee, in Hew Haven. This he sent to a bank in Hew Haven with instructions for delivery upon the payment to it of the amount of the invoice. Of 'course, and as was shown by the evidence, this was impracticable. The proper and usual method of accomplishing Marrus’ purpose was pointed out upon the receipt which he took. Hot having had the receipt made-out to the order of the purchaser, and so insuring its delivery only upon the production of the receipt, and having neglected to make the claim within the time agreed upon, his complaint herein was properly dismissed by the trial court, and the judgment should be affirmed.
Judgment reversed and new trial ordered, with costs to appellant, to abide event.