Dobbins v. Delaware, Lackawanna & Western Railroad

Kellogg, P. J.:

When the cabbage were put in the cars, furnished by defendant for them, it was its duty to transport them to the consignee, and in issuing a bill of lading it must issue it according to the facts. Defendant refused to ship the cabbage unless plaintiff would accept a bill of lading with a notation upon it that the cabbage were “more or less frozen when received.” The evidence quite conclusively shows that the cabbage were in good condition and were not “more .or less frozen when received.” In any question between the plaintiff and the company about the condition of the cabbage this false notation would be some evidence against the plaintiff. He was not obliged to accept the bill of lading, thus making an admission against himself not warranted by the facts. The requirement of the defendant was, therefore, unreasonable and arbitrary, and it violated its duty in refusing to ship the cabbage. Plaintiff was not bound to abandon his effort to ship the cabbage and remove them from the car, as it was defendant’s duty to forward them. The defendant shipped the cabbage, not to the destination indicated by the plaintiff, but to another place, and sold them, as it claimed, on the plaintiff’s account. The plaintiff, therefore, was entitled to recover their value.

These facts were properly proved under the complaint. It alleged that the plaintiff loaded the cabbage into defendant’s car and requested it to transport them to the consignee; that the defendant wholly refused and neglected to issue to the plaintiff a bill of lading and deliver the same to the consignee, and that by reason of the defendant’s failure to transport the cabbage and give plaintiff a bill of lading, according to its duty, the cabbage were injured and the plaintiff suffered loss of the value thereof. The recovery is well justified by the allegations of the complaint and the evidence.

It is not necessary to set forth in a pleading all the circumstances attending a transaction; the facts may be stated according to their legal effect. (Brown v. Champlin, 66 N. Y. 214; Kunz v. Bosselman, 131 App. Div. 288.)

I, therefore, favor affirmance.

All concurred, except Woodward, J., who dissented in opinion, in which Cochrane, J., concurred.