Summary
In Weed v. Barney (supra) it is said: "But it is insisted that the defendants should have given notice to the consignor when the consignees did not receive and pay for the package.
Summary of this case from Manhattan Shoe Co. v. C., B. Q.R.R. Co.Opinion
Argued April 10th, 1871
Decided April 25th, 1871
Grosvenor P. Lowrey, for appellants. Samuel Hand of counsel for respondents.
Whether Wells, Fargo Co. were liable, as common carriers or otherwise, for the package received at New York for San Francisco, as between those two cities, is not material to this controversy. The defendants received the package at the ship's tackles at San Francisco, and their responsibility, confessed by them, commenced. They were to deliver the package to Finch Co., at San Francisco, and collect the amount marked thereon, together with charges and commissions.
The package was received by the defendants on the 17th of March, and put in their warehouse, and it was tendered to the consignees and payment demanded. This was repeated several times, until, on the 16th of April, when the package was destroyed, without fault of the defendants.
Let it be remembered that this package could not have been delivered by the defendants. It was to be delivered only upon payment of the money; and the money was not paid. There was no refusal to receive or to pay. The consignees promised to receive and pay each time, and their delay in doing so was not unusual.
Thus the package remained in the defendants' warehouse until it was destroyed, without their fault.
We have lately held, that a passenger's baggage, arriving at the end of the journey, and not called for until three days thereafter, was then held by the carriers, as warehousemen. ( Burnell v. N.Y. Central R.R. Co., ante p. 184; and see Roth v. Buffalo and State Line R.R., 34 N.Y., 548; Goold v. Chapin, 20 id., 259; Northrup v. Railroad, 2 Trans. App., 183; In re Webb, 8 Taunt., 443.)
After the defendants had tendered the package to the consignees and demanded the money, and after the consignees had had a reasonable time to call for and receive it, I think the defendants held the package as warehousemen, and not as common carriers, and were thereafter responsible for the care of warehousemen merely, whatever their attitude before. As warehousemen, it is not pretended they were liable.
But it is insisted that the defendants should have given notice to the consignor, when the consignees did not receive and pay for the package. Was there any contract to do so? All there was on that subject was a mere direction from the defendants here to their agents there "to notify this office" "if the goods are refused or the parties cannot be found." This could scarcely be regarded as a contract with the consignor. Nor did either contingency happen. The goods were not "refused;" but the consignees promised to take and pay for them, within the time usual at San Francisco. What was there to notify, so long as these consignees were acting as others usually did at that place, if the practice were reasonable and valid? Neither counsel has questioned the validity of this practice, and I do not propose to pass upon it. The situation and location of the parties must be considered in reference to notice. Mail-time then, between New York and San Francisco, was twenty-two days. The defendants, of course, expected to get pay for the goods before a letter could be answered. Telegraphing was expensive; and there does not seem to have been occasion for its use. There is no statement that it was usually or ever resorted to under such circumstances.
The authorities would not seem to require notice under the facts of this case, though notice may be sometimes necessary.
Expressmen are not required to do unreasonable or absurd things. ( Heugh v. Lond. N.W.R. Co., 5 L.R. [Exch.], 51; The Lond. N.W.R. Co. v. Bartlett, 7 Hur. Nor., 400; Kremer v. South. Ex. Co., 6 Cold., 356; Gulliver v. Adams Ex. Co., 38 Ill., 503.)
In the case at bar, what had the expressmen to communicate if they had given notice? Nothing unusual, as nothing unusual had occurred. But suppose they had notified the home office of the whole facts, and they had directly come to the knowledge of the consignor? He had thus become aware that some days had elapsed and the money had not been paid, but had been promised, and no doubt would be paid in a few days, as was usual at that place. Would the consignor have given any directions at war with the course pursued by defendants? In all probability he would not. But if he had given directions by mail to return the goods forthwith to New York, the order would have arrived too late; it would not have prevented the loss.
Thus it was not the lack of giving notice that caused the loss, hence defendants are not liable for omitting to give it. ( Morrison v. Davis, 20 Penn., 171; Denny v. N.Y. Cent. R.R. Co., 13 Gray., 481.)
The judgment is reversed and judgment ordered for defendants.
All the judges agreeing, except FOLGER and RAPALLO, J.J., who did not vote.
Judgment reversed, and judgment ordered for defendants, with costs.