(112 Misc. Rep. 453)

(183 N.Y.S.)

SPITZER. et al. v. PORTO RICAN EXPRESS CO.

(Supreme Court, Appellate Term, First Department. June 29, 1920.) 1. Carriers 4-Express company, transporting packages from United States to Porto Rico, is "common carrier."

An express company, transporting packages from the United States to Porto Rico, is, under the Carmack Amendment (U. S. Comp. St. §§ 8604a, 8604aa), a "common carrier," although it did not own or control the steamer upon which it forwarded the goods.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Common Carrier.]

2. Carriers 89-Eight months' delay in returning C. O. D. shipment by express held unreasonable as matter of law.

Eight months' delay in returning a C. O. D. shipment by express, which had not been accepted, held unreasonable as matter of law; the shipper directing return of goods or money.

3. Carriers 123-Where delay makes intervention of act of God possible, it is deemed proximate cause.

Under the laws of New York as to intrastate shipments, delay in carriage that makes possible the intervention of an act of God is an efficient concurring cause, and thus a concurrent proximate cause.

4. Carriers 123-Under federal rule, delay making intervention of act of God possible is not proximate cause.

Under the federal rule applicable to interstate shipments by reason of the Carmack Amendment (U. S. Comp. St. §§ 8604a, 8604aa), delay, whether reasonable or not, is as a matter of law not a concurring proximate cause with an act of God, the intervention of which the delay makes possible.

5. Action 27 (3)—Where carrier refused to return unaccepted C. O. D. shipment or money, shipper may recover for breach of contract.

Where an express company, which transported a C. O. D. shipment to Porto Rico, unreasonably delayed compliance with the shipper's direction to return the goods, acceptance having been refused, or the money, but retained the shipment for convenience in negotiating a dispute with a steamship company, and the shipment was injured by earthquake, the shipper, who might have asserted a conversion, could recover on the theory of breach of contract, waiving conversion and giving the express company credit for the value of the goods returned in their damaged condition.

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by Daniel Spitzer and others against the Porto Rican Express Company. From a judgment for defendant, entered on the verdict of a jury, plaintiffs appeal. Reversed, and judgment directed for plaintiffs.

Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ.

George Wolf, of New York City (I. Maurice Wormser, of New York City, of counsel), for appellants.

Joseph Walker Magrauth, of New York City, for respondent.

MULLAN, J. [1] On February 9, 1918, in New York City, plaintiffs delivered to defendant a case and a package, upon one bill of

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

lading, for delivery C. O. D. to a consignee in Porto Rico. Although the defendant did not own or control the steamer upon which it forwarded the goods, its status was that of a common carrier. Belger v. Dinsmore, 51 N. Y. 166, 10 Am. Rep. 575; Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426; Carmack Amendment, Act Feb. 4, 1887, c. 104, § 20, pars. 11, 12, as amended by Act June 29, 1906, c. 359, § 7, pars. 11, 12 (U. S. Comp. St. §§ 8604a, 8604aa), and Act Aug. 9, 1916, c. 301 (section 8604a). Upon the arrival of the goods in Porto Rico, prior to February 26, 1918, the case was found to be damaged, and the package was found to be intact. Immediately upon the arrival of the goods, the consignee was notified thereof, and of the facts of the damage, and, for a reason unconnected with the damage, refused to accept the case, but offered to accept the package. On February 26, 1918, defendant, by letter from Porto Rico, notified plaintiffs that the goods were "refused," and asked, for instructions. Plaintiffs' immediate instructions were to "return the goods or the money." Defendant had refused to accept the goods from the steamship company, because of defendant's claim against the steamship company for damage; but, about March 25, 1918, it did accept the package, delivered it to the consignee, collected for the package, and remitted. Defendant still refused to accept the case, and it was not until August 10, 1918, that having, in some manner not disclosed, adjusted its dispute with the steamship company, defendant accepted the case and again offered it to the consignee, who again refused to receive it. Defendant then, about August 10, 1918, placed the case in defendant's Porto Rico warehouse, where it lay until November, 1918, when it was removed and returned to plaintiffs. In the meantime, on October 20, 1918, an earthquake seriously injured the warehouse, and the accompanying violent rain seriously damaged the goods in the case. The goods were later returned to plaintiffs in their damaged condition. A prima facie case for plaintiffs is conceded by defendant's admission of its failure to deliver the money or the goods as shipped, as is also the amount of plaintiffs' damage.

[2-5] The defendant contends, however, that it has made out a defense destroying the plaintiffs' case by showing that the damage was caused by an earthquake, concededly an act of God. The theory upon which the case was given to the jury, over plaintiffs' objection, was that, if the defendant's delay in sending back the goods, without which the earthquake would have been unable to inflict this damage, was not unreasonable, then the act of God alone was the justifiable cause of the injury, and the delay, if not unreasonable, was not negligence. In other words, the case went to the jury upon the theory that unreasonable delay would have made the defendant liable, in negligence, for damage caused by an act of God, which would not have injured the goods, except for the delay. We may say, in passing, that even upon that theory the delay was so great as to be unreasonable as matter of law, and plaintiffs' motion for a direction should have been granted.

The law of this state as to intrastate shipments is that a delay in carriage that makes possible the intervention of an act of God is an

(183 N.Y.S.)

efficient concurring cause, and thus a concurrent proximate cause. Barnet v. N. Y. C. & H. R. R., 222 N. Y. 195, 118 N. E. 625; Meritt v. Earle, 29 N. Y. 115, 86 Am. Dec 292; Michaels v. N. Y. C. R. Co., 30 N. Y. 564, 86 Am. Dec. 415; Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426; Bostwick v. B. & O. R. Co., 45 N. Y. 712; Condict v. Grand Trunk Ry. Co., 54 N. Y. 500. But that rule of law is not applicable here, because by the Carmack Amendment the federal law was made to apply to all interstate shipments, and this is an interstate shipment, being from a state to a territory. Under the federal rule, delay alone, whether reasonable or unreasonable, is, as matter of law, not a concurrent proximate cause with an act of God. Barnet v. N. Y. C. & H. R. R. Co., supra; Hadba v. B. & O. R. Co., 183 App. Div. 555, 170 N. Y. Supp. 769; Railroad Co. v. Reeves, 10 Wall. (77 U. S.) 176, 19 L. Ed. 909; St. Louis Ry. Co. v. Commercial Union Ins. Co., 139 U. S. 223, 11 Sup. Ct. 554, 35 L. Ed. 154; Rezsek v. So. Pac. Co., 111 Misc. Rep. 180, 181 N. Y. Supp. 117. So, were the action based upon negligent delay in delivery, making possible the destruction by act of God, the defendant would have been entitled to a direction.

But that is not the theory upon which the action was brought or tried, although it is the theory upon which the court below sent it to the jury. Plaintiffs correctly brought their action for damages for the breach of the contract that required defendant to return the goods or the money. Defendant, by retaining the goods to convenience itself in its dispute with the steamship company, storing the goods in Porto Rico, and refusing to return them, exercised a dominion over them incompatible with its duty as bailee. The action could then have been brought in conversion. But plaintiffs waived the tort and elected. to bring the action ex contractu, claiming the damage as the value of the goods, less the amount credited to defendant in mitigation of damages, for the value of the damaged merchandise finally returned. The action is thus laid as of the date of the conversion, and the question of the subsequent act of God is not properly in the case. The conflict between the New York rule and the federal rule thus becomes of academic interest merely, and it follows that the plaintiffs' motion for a direction of a verdict should have been granted.

Judgment reversed, with $30 costs, and judgment directed for the plaintiffs for $511.02, with appropriate costs in the court below. All

concur.

BRENNER et al. v. GREENBERG & GREENBERG, Inc. (Supreme Court, Appellate Term, First Department. June 16, 1920.) 1. Sales 4 (3)-Transaction held a sale, instead of a bailment.

Where plaintiff ordered suits from defendant, and, to enable defendant to use a certain class of lining on these goods, agreed to sell and defendant agreed to buy linings, the transaction was a sale instead of a bailment.

2. Sales 176 (1)—Request for delivery after expiration of time a waiver of condition.

Buyer's request for delivery after expiration of time was a waiver of condition that goods should be delivered within period stipulated.

3. Sales 176 (1)—On waiver of time for performance, notice essential to take advantage of default.

Where time of performance of contract for sale of goods has been waived, party waiving it cannot take advantage of the other's default until a reasonable time for completion has been established by appropriate notice.

Appeal from City Court of New York, Trial Term.

Action by Philip Brenner and another against Greenberg & Greenberg, Incorporated. From a judgment for plaintiffs, after trial by a judge and jury, defendant appeals. Reversed, and new trial granted. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

Hirsh, Newman & Reass, of Brooklyn (Benjamin Reass, Hugo Hirsh, and Emanuel Newman, all of Brooklyn, of counsel), for appellant.

Max Monfried, of New York City (Charles Warner, Louis B. Brodsky, and Max Monfried, all of New York City, of counsel), for respondents.

BIJUR, J. This action was brought to recover for the agreed price of some silk lining sold by plaintiffs to defendant.

[1] Although defendant urges on this appeal that the transaction was a bailment, and not a sale, I can find no merit in this contention. It appears without contradiction that plaintiffs had ordered from defendant on July 16, 1919, delivery to be made within two weeks, a certain number of ladies' suits at prices and upon terms specified in the order. For the purpose of enabling the defendant to use a certain class of silk lining on these goods, plaintiffs agreed to sell, and defendant agreed to buy, a certain number of yards of silk lining at an agreed price. The original transaction was clearly not, and did not pretend to be, a bailment with an agreement for work, labor, and services, as is frequently the case in these contractor's actions, but was an out-and-out sale of goods, the material for which was to be obtained by defendant, the work to be done by defendant, and the completed garments to be sold to the plaintiffs. In the course of manufacture, and for the purpose of facilitating it, defendant merely bought from plaintiffs goods (silk linings) which, had they been as readily obtainable, it could and would have been bought elsewhere. As

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(183 N.Y.S.)

the linings were received and used by the defendant, plaintiffs were entitled to the direction of a verdict for their price.

[2] There was, however, a material error in the charge in regard to the defendant's counterclaim for breach of agreement on the part of the plaintiffs in refusing to accept the goods from defendant. It was testified to repeatedly by plaintiffs' witness that after the time for delivery had passed he made a number of requests for the goods, thus clearly establishing a waiver of the condition that the goods should be delivered strictly within the two weeks provided in the contract. The witness further testified that at the last of these conversations he had notified the defendant that, if it did not deliver the goods within the next few days, he would cancel the contract. This conversation, particularly so far as it referred to the notice to complete the goods within the next few days was denied by the defendant's witness.

[3] The conflict in testimony affects the application of the doctrine expounded in Taylor v. Goelet, 208 N. Y. 253, 101 N. E. 867, Ann. Cas. 1914D, 284, that if the time of performance has been waived the party so waiving it cannot avail of the other party's default until a reasonable time for completion has been established by appropriate notice. Defendant asked the learned judge below to charge that—

"It being an admitted fact in this case that the plaintiffs had waived the time of delivery as fixed by the agreement, they could not thereafter put the defendant in default, except upon giving notice fixing a reasonable time thereafter within which defendant may make performance."

This the learned judge refused to charge, "except as already charged in the main charge." But this request was not covered by the main charge, either in form or substance, and, indeed, such references to the subject as were contained in the main charge were inaccurate and incorrect, and referred to "extensions of time," concerning which there was no evidence, and laid down incorrect rules in reference thereto. The defendant was entitled to the charge, and as the matters covered thereby were really the only ones that could or should have been submitted to the jury for their decision, the error is palpably material.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.

(112 Misc. Rep. 468)

ROSENHOLZ v. FRANK G. SHATTUCK CO.

(Supreme Court, Appellate Term, First Department. June 16, 1920.)

1. Municipal corporations 809 (1) -Nature of right and duty under municipal license to construct sidewalk elevator stated.

The license from the municipality, pursuant to which a restaurant keeper constructed a sidewalk elevator in front of its building, merely made legal what would have otherwise been illegal and a nuisance, and the licensee was under a duty to maintain it properly guarded, and to afford safe means for its operation.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes