On appeal from the District Court of the Second Judicial District of the County of Essex.
For the plaintiff-appellee, Braelow & Tepper.
For the defendant-appellant, Norman R. Wynne.
Before Justices Parker, Lloyd and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This appeal brings up for review a judgment of $500 rendered on August 3d, 1933, by the judge, sitting without a jury, in favor of the plaintiff and against the defendant. The case was tried on June 16th, 1932. In the language of the appellant it appeals to this court to set aside the verdict because of alleged errors of the trial court in failing to grant defendant's motions for a nonsuit and direction of verdict, for finding in favor of plaintiff on the evidence, and for applying an erroneous rule as to damages.
Briefly, the facts are as follows: The plaintiff and defendant entered into a contract on March 7th, 1930, which contract, plus rider No. 2 thereto, was in force at the time the alleged cause of action arose. This contract provided, inter alia:
"First: The Express Company shall receive and receipt for sealed package of money the value of which shall be marked on the package and shall transport and deliver the same in like condition, with reasonable despatch as follows:
"Call every Saturday about 9:30 A.M. at the Orange Valley Bank, 394 Scotland Road, Orange, N.J., receive sealed package of money (payroll) and deliver same by not later than 11:00 A.M. to the customer at 451 South Jefferson Street, Orange, New Jersey.
"Call every Thursday about 12:30 P.M. at the First National Bank, Main Street, Woodbridge, N.J., receive two sealed packages of money (payrolls) and promptly deliver one to the customer's shop at 35 Green Street, Woodbridge, N.J., and one to customer's shop at 79 Avenel St., Avenel, N.J.
"In the event of Saturday or Thursday falling on a bank holiday, service is to be performed on the preceding day, or such other day as may be designated by the customer."
"Second: The Express Company shall assume full responsibility for the loss of any or all of said money contained in the sealed package above described from the time when the same is delivered into its custody until it is delivered to and receipted for by the customer or the person designated by him to give such receipt at the address named; or, in the event that such delivery cannot be made for reasons beyond the control of the Express Company, ...