[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 119
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 120 The contract between the railroad company and the plaintiff was that it would transport her baggage from Troy to its depot in the city of New York, and upon presentation of her check at that place, to there deliver the trunk to her or her agent making demand therefor.
The contract between the express company and the plaintiff was that it would present her check to the railroad company at its depot in New York city, demand her trunk at that place, and upon receipt thereof transport it to No. 222 East 71st street, and there leave it; but if the railroad company should fail to deliver the trunk, that it would return the check to her, with a suitable explanation. *Page 121
The express company did not perform its contract according to the terms thereof, but for its own convenience parted with the custody of the check before the railroad company had transported the trunk to its place of destination. In so doing it acted through Mr. Green, whose methods of doing its business had continued for so long a time that the law presumes they were known to and approved by it. Whatever Mr. Green did, therefore, in transacting the business he was employed to do, in his customary way, the express company itself did.
After receiving the check from the plaintiff, Green, according to his usual method, went forward to the baggage car of the railroad company, where, with its approval as must be presumed from the established course of business, he placed the plaintiff's check upon the strap containing the duplicate check attached to her trunk, upon which he pasted the label of the defendant. The evidence warranted the inference that at this time the contents of the trunk had not been disturbed. These acts, as the jury could have found, constituted a surrender of the check to the railroad company. Green no longer had it in his possession, for he had voluntarily put it on the strap where it belonged, which was in the possession of the railroad company, and where it was always placed upon surrender. The express company paid no further attention to the check, but depended upon its label to identify the trunk. It thereby parted with control of the check, and had no power to resume possession without consent of the railroad company, which is presumed to have accepted the surrender, because it was its custom to retain possession of both trunk and check until they reached its baggage room in the Grand Central Depot, where it took off and kept the strap containing the check and held the trunk subject to the order of the express company. Such checks were not returned to the express company, but were retained by the railroad company as evidence that its contract with the owner of the baggage had been performed. While it was the duty of the defendant to deliver the trunk with the contents intact or return the check, it did *Page 122 neither, but gave up the check at a time and place not permitted by the contract, and after a delay of nearly three days delivered the trunk rifled of its contents. The facts speak for themselves and do not require elaborate argument.
What was the legal effect of the premature surrender of the check under the circumstances stated?
Whether the effect upon the liability of the railroad company to the plaintiff was to terminate it, as a carrier, convert it into that of a warehouseman, or to end it entirely, we do not determine, but confine our attention to the effect upon the liability of the express company to the plaintiff. As between the two companies, the railroad company became the bailee of the trunk for the express company. Thenceforth there was a dual custody, by the latter as bailor and by the former as bailee, the same as always results from the storage of property of a principal by a bailee thereof, whether authorized by the owner or not. The possession of the railroad company thus became the possession of the express company. So far as the rights of the plaintiff are concerned, the defendant had assumed control of the trunk and was bound to make safe delivery thereof to her. By its action it ran the risk of receiving the trunk, with the contents unharmed, from the railroad company, its bailee. While it was under no obligation to take any responsibility for the trunk until the actual delivery thereof, upon surrender of the check at the Grand Central Depot, it saw fit, for purposes of its own, to anticipate responsibility by giving up the check while the trunk was in transitu. It cannot now be heard to say that it did not intend this result, for the law holds it to the natural consequences of its own acts. The plaintiff was entitled to her check, unaffected by the unauthorized surrender, as unimpaired evidence of an unperformed contract of the railroad company, or the delivery of her trunk with the contents undisturbed. She cannot be tossed like a ball from one company to the other, each disclaiming liability itself and seeking to place it upon the other. One at least was liable, and from their intimate relations they could easily have determined which, without *Page 123 subjecting a patron of both to the expense and delay of litigation which has lasted more than ten years.
We think the defendant is liable for the loss of the articles stolen from the trunk, and this conclusion makes it unnecessary to consider the numerous requests to charge, based upon a different theory of liability from the one which we have laid down.
The defendant claims that the trial court erred in refusing to submit to the jury the questions whether the plaintiff knew that the writing or printing on the paper delivered to her by the messenger contained conditions relating to the terms of the contract, and whether the defendant did what was reasonably sufficient to give the plaintiff notice of such conditions.
Upon this subject the trial judge, after reading the contents of the paper to the jury, charged as follows: "The defendant claims that the plaintiff knew the contents of the paper, because she had on previous occasions, while traveling on said railroad, had her baggage sent by the defendant's agent, and had received from him a receipt with some printing on it and of the same kind as the one in question. If you find from the entire evidence, and under the instructions of the court, that the plaintiff knew the character of the paper so received by her from the defendant's agent, or accepted it with notice of its contents, or with notice that it contained the terms of a special contract, so as to make her acquaint herself with its contents, and neglected to do so, the limitation of $100 applies, and in that event, even though you may find the plaintiff is entitled to your verdict, she cannot recover more than such sum. If, however, you find from all the circumstances that the plaintiff did not know the paper writing in question was proffered as a contract, and received it not knowing its contents and satisfied it was given her simply to enable her to trace her property, or a mere receipt, then the plaintiff is not bound by its limitation, and you may, if you find she is entitled to recover, render a verdict in her favor for the value of the goods which you find were lost."
We think this was all that the defendant could require, and *Page 124 that its requests for further instructions upon the subject were properly refused. (Madan v. Sherard, 73 N.Y. 329; Grossman v. Dodd, 63 Hun, 324; affirmed, 137 N.Y. 599; Zimmer v.N.Y.C. H.R.R.R. Co., 137 N.Y. 464.)
The court was also requested to charge that, "even if the jury find a verdict for the plaintiff, she is not entitled to interest;" but, as no exception was taken to the refusal, no question is presented for consideration.
After examining all the exceptions, we find none calling for a reversal, and the judgment appealed from should, therefore, be affirmed, with costs.
PARKER, Ch. J., HAIGHT, MARTIN, LANDON and CULLEN, JJ., concur; BARTLETT, J., not sitting.
Judgment affirmed.