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Reich v. McGill

Decided: January 26, 1938.

ABRAHAM REICH, MATTHEW A. REICH AND SAMUEL REICH, TRADING UNDER THE FIRM NAME AND STYLE OF A. REICH & SONS, PLAINTIFFS-APPELLANTS,
v.
J. EMMET MCGILL, TRADING UNDER THE FIRM NAME AND STYLE OF MCGILL'S INTERSTATE EXPRESS, DEFENDANT-RESPONDENT



On appeal from the Supreme Court.

For the appellants, Armstrong & Mullen (Arthur C. Mullen, of counsel).

For the respondent, Isidore Hornstein.

Perskie

The opinion of the court was delivered by

PERSKIE, J. The determinative question in this cause is whether the carrier's liability, under the proofs exhibited, is limited to the value placed upon the shipments as expressly stated in the receipts issued therefor.

Appellants -- plaintiffs below -- as shippers, sued respondent -- defendant below -- as a common carrier, to recover the value of ten bales of silk which defendant, contrary to his alleged undertaking with plaintiffs, failed to transport to three of plaintiffs' consignees. Plaintiffs' complaint consists of three counts. Generally stated, plaintiffs primarily sought to recover (under the first count) the actual value of the ten

bales of silk, namely, $2,000; and if not entitled to the recovery sought under the first count, claimed the right of recovery (under the second count) on a basis of the weight of the shipments, which amount we are told would equal the sum of $665; and if not entitled to recovery on either the first or the second count, plaintiffs claimed the right of recovery (under the third count) to the conceded amount of $50 for each shipment, or a total of $150. Defendant generally denied liability; he especially denied any liability beyond his conceded liability under the third count of plaintiffs' complaint.

Counsel for the respective parties stipulated the facts and submitted the cause for decision by the trial judge, without a jury.

From the record and stipulation thus submitted, we learn that on January 30th, 1934, defendant, as a common carrier, received from a warehouse in Hoboken, New Jersey, ten bales of silk, in lots of two, three and five bales, to be transported to three of plaintiffs' consignees, in Paterson, New Jersey. At the time defendant received the goods, Mr. Bryant, a shipping clerk of the United States Testing Company, Incorporated, and admittedly not the agent of the defendant, filled out defendant's form of receipts (numbers 11604, 11605 and 11606) covering the shipments in issue. Each of the receipts so filled out contains the following printed statement: "Value herein declared by shipper to be * * *." On the blank space of the quoted statement Bryant wrote in "$50." And we are told that each receipt also contains, among the "terms and conditions" thereof, the following provision:

"1. In consideration of the rate charged for carrying said property, which is dependent upon the value thereof and is based upon an agreed valuation of not exceeding fifty dollars for any shipment of 100 pounds or less, and not exceeding fifty cents per pound, actual weight, for any shipment in excess of 100 pounds, unless a greater value is declared at the time of shipment, the shipper agrees that the Company shall not be liable in any event for more than fifty dollars for any shipment unless a greater value is stated herein. Unless a greater value is declared and stated herein, the shipper agrees

that the value of the shipment is as last above set out and that the liability of the Company shall in ...


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