Spiero v. New York Central & Hudson River Railroad

Dayton, J.

The facts are undisputed and in brief are as follows: Plaintiff, through Geo. W. Sheldon & Co., gave an order to the defendant for the shipment of fourteen cases of desk lumber, marked “ S. L. T. Paris ” Prance, from Her*54kimer, Hew York, to the city of Hew York. At the same time defendant transported ten cases of like lumber, marked: “ L. O. S. London ” England, from Herkimer to this city, for Geo. W. Sheldon & Go. On the arrival of these twenty-four cases at Hew York, Sheldon & Co. received from defendant an arrival notice and thereupon indorsed the notice as follows:

“ Deliver the within mentioned property subject to the above conditions to S. S. Mesaba, At (As) per permit attached.”

The property was described in the notice as follows:

“ 10 O. S. Desks K. D. Elat in white L. O. S. London
“ 14 C. S. Desks K. D. Flat in white S. L. T. Paris.”

The Atlantic Transport Line issued its permit for shipment in part as follows: “April 22, 1907. Please receive from G. W. Sheldon Go. for shipment to London, per steamship Mesaba, 10 cases Desk lumber. To be delivered alongside Thursday.” notwithstanding the explicit designation of the fourteen cases in the notice and the non-mention of them, but, on the contrary, the limited and only specification of ten cases in the permit, the fourteen cases were also put aboard the Mesaba and landed in London, where plaintiff’s agent obtained and reshipped them to France at an expense of $360.23, which sum plaintiff sued to recover and had judgment. Defendant appeals. Appellant contends that plaintiff’s damages could have been reduced by reshipping the goods to Hew York and again to France, causing a delay of but three or four weeks. One answer to this is that plaintiff was obligated to make prompt delivery at Paris. An-' other answer is that the course suggested, on the facts here, goes beyond the rule of “ reasonable exertion to render the injuries as light as possible.” Appellant also contends that, according to “ custom,” the fourteen cases with the ten cases being on the dock, no matter how marked, were properly taken aboard the Mesaba. The evidence offered on that subject consisted of opinions of defendant’s witnesses who did not cite a general parallel instance to support their opinions. Such a remarkable custom should be unequivocally *55established. Appellant also contends that the indorsement of the arrival notice, Deliver within mentioned property to S. S. Mesaba,” fails to direct or require detention of part of the property; but the words “ per permit attached ” were a part of the indorsement and, as before stated, the permit specifies only the ten cases for London.. Eurthermorej it is admitted that the property arrived in Hew York city April 22, 1907. Two days previously, and on April 20, 1907, Sheldon & Co. gave to plaintiff an order, directing defendant to deliver the “ fourteen cases of desk lumber S. L. T. Paris ” to plaintiff. The parties stipulated that, within a few days after April twenty-second, plaintiff presented Exhibit 0. to defendant, but defendant refused to deliver said property. The absence of a stipulated date of the receipt of said order by defendant does not justify the presumption of its non-receipt until after the Mesaba had sailed. On the contrary, the order dated April twentieth being in plaintiff’s hands April twenty-second, he being obligated to make prompt delivery at Paris, the more reasonable presumption is that defendant received the order prior to April twenty-sixth or twenty-seventh. Defendant contracted to transport these fourteen cases from Herkimer to this city and was directed to deliver them to plaintiff, but neglected to do so through no fault of plaintiff.

The judgment is right and should be affirmed, with costs.

Seabuey, J., concurs.