Joseph Spiero, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant

Dayton, J.

The facts are undisputed and in brief are as follows: Plaintiff, through Geo. W. Sheldon & Co., gave an order to the defendant for the shipment of fourteen cases of desk lumber, marked “ S. L. T. Paris ” Prance, from Her kimer, Hew York, to the city of Hew York. At the same time defendant transported ten cases of like lumber, marked: “ L. O. S. London ” England, from Herkimer to this city, for Geo. W. Sheldon & Go. On the arrival of these twenty-four cases at Hew York, Sheldon & Co. received from defendant an arrival notice and thereupon indorsed the notice as follows:

“ Deliver the within mentioned property subject to the above conditions to S. S. Mesaba, At (As) per permit attached.”

The property was described in the notice as follows:

“ 10 O. S. Desks K. D. Elat in white L. O. S. London

“ 14 C. S. Desks K. D. Flat in white S. L. T. Paris.”

The Atlantic Transport Line issued its permit for shipment in part as follows: “April 22, 1907. Please receive from G. W. Sheldon Go. for shipment to London, per steamship Mesaba, 10 cases Desk lumber. To be delivered alongside Thursday.” notwithstanding the explicit designation of the fourteen cases in the notice and the non-mention of them, but, on the contrary, the limited and only specification of ten cases in the permit, the fourteen cases were also put aboard the Mesaba and landed in London, where plaintiff’s agent obtained and reshipped them to France at an expense of $360.23, which sum plaintiff sued to recover and had judgment. Defendant appeals. Appellant contends that plaintiff’s damages could have been reduced by reshipping the goods to Hew York and again to France, causing a delay of but three or four weeks. One answer to this is that plaintiff was obligated to make prompt delivery at Paris. An- other answer is that the course suggested, on the facts here, goes beyond the rule of “ reasonable exertion to render the injuries as light as possible.” Appellant also contends that, according to “ custom,” the fourteen cases with the ten cases being on the dock, no matter how marked, were properly taken aboard the Mesaba. The evidence offered on that subject consisted of opinions of defendant’s witnesses who did not cite a general parallel instance to support their opinions. Such a remarkable custom should be unequivocally established. Appellant also contends that the indorsement of the arrival notice, “ Deliver within mentioned property to S. S. Mesaba,” fails to direct or require detention of part of the property; but the words “ per permit attached ” were a part of the indorsement and, as before stated, the permit specifies only the ten cases for London.. Eurthermorej it is admitted that the property arrived in Hew York city April 22, 1907. Two days previously, and on April 20, 1907, Sheldon & Co. gave to plaintiff an order, directing defendant to deliver the “ fourteen cases of desk lumber S. L. T. Paris ” to plaintiff. The parties stipulated that, within a few days after April twenty-second, plaintiff presented Exhibit 0. to defendant, but defendant refused to deliver said property. The absence of a stipulated date of the receipt of said order by defendant does not justify the presumption of its non-receipt until after the Mesaba had sailed. On the contrary, the order dated April twentieth being in plaintiff’s hands April twenty-second, he being obligated to make prompt delivery at Paris, the more reasonable presumption is that defendant received the order prior to April twenty-sixth or twenty-seventh. Defendant contracted to transport these fourteen cases from Herkimer to this city and was directed to deliver them to plaintiff, but neglected to do so through no fault of plaintiff.

The judgment is right and should be affirmed, with costs.

Seabuey, J., concurs.

Lehman, J. (dissenting).

The plaintiff herein had not given an order to defendant through George W. Sheldon for the shipment of desk lumber. He had ordered this lumber from the Horrocks Desk Company in Herkimer to fill an order which he had received from Paris, and that company had forwarded the same by way of defendant’s railroad, addressed to the firm of G. W. Sheldon with instructions to the latter to have the lumber delivered on arrival to the order of the pláintiff; the firm of G. W. Sheldon delivered to the plaintiff a written order upon the defendant, but the defendant refused and failed to deliver the said merchandise to the plaintiff. These are the allegations of the complaint; and, by stipulation of the parties, it appears that the railroad company did not know of the giving of the order by the plaintiff to the H-orroeks Desk Company, nór of the instructions of the latter to G. W. Sheldon. It further appears from the stipulation that these fourteen cases of desk lumber marked “ S. L. T. Paris ” and ten cases of desk lumber marked “ L, 0. S. London ” were delivered to defendant at Herkimer as a carload lot, and the defendant had no knowledge of the fact that the plaintiff was in any manner whatsoever interested in any part of the consignment of lumber.

Upon these conceded facts, it is evident that G. W. Sheldon & Co. was the legal consignee of the lumber; and, if the defendant delivered the lumber to them, or upon their order before they received the order which Sheldon & Co. gave the plaintiff, then the defendant is not liable to the plaintiff.

When these goods arrived in Hew York, the defendant sent Sheldon & Company a notice of arrival. Upon the back of this notice there was printed a blank indorsement: “ Deliver the within property subject to above conditions. To -. At-” and below a blank for the signature, followed by the printed word “ Consignee.” This indorsement was filled in by Sheldon & Co. so that it read: “Deliver the within-mentioned property subject to above conditions. To S. S. Mesaba. At per permit attached, G. W. Sheldon, Consignee.” The permit provided for shipment to London, per steamship Mesaba, ten cases desk lumber, to be delivered alongside Thursday, and contained various other clauses not material upon the question which we are considering.

The defendant delivered the twenty-four cases upon the steamship Mesaba; and the sole question that we have to consider here is whether the defendant was justified, under the terms of this order, in making such delivery.

Personally I feel that this order is not even ambiguous. It provides for the delivery of the within-mentitined property and the within-mentioned property was twenty-four cases. It is true that the permit provided for only ten cases, but the only reference to the permit was in the blank after the word “At ”; and it appears, to me that it was incorporated in the order only to show the place of delivery, viz., alongside the steamship. By such an interpretation we give a logical and natural meaning to every word of the order.

Conceding, however, that the permit is actually incorporated in the order in all its parts, then the order is ambiguous, and we should look to surrounding circumstances for an explanation of its meaning.

The parties have stipulated, subject to objection as to its materiality: “ That it is the custom of forwarders of freight when receiving arrival notices from defendant in the form of Exhibit A (the notice in this case) to return the same to defendant with instructions with reference to the delivery of the property shown on said arrival notices to steamships, attaching to said arrival notices permit from the steamship company on the form of said Exhibit B (the permit in this case) ; that the quantity of property shown on said forms frequently varies from the quantity shown on the arrival notices, and that it is customary for the steamship companies to accept a greater or less quantity than is shown on such permit.”

At the trial the plaintiff objected to all t.idence as to the custom of the steamship company accepting more goods than was specified in the permit, as incompetent, immaterial and irrelevant; and the trial justice admitted the evidence, subject to be stricken out if, upon consideration, he should hold the objection good.

The trial justice then filed with his decision a memorandum, stating: "I do not regard the proof of custom as material, as it was not shown that plaintiff had knowledge. ¡Neither do I believe in so unreasonable a custom.” . The trial justice was clearly in error. The knowledge of the plaintiff is utterly immaterial, because he was not the consignee, but claims under the consignee, and the consignee’s knowledge was sufficiently shown; nor does it make any difference if the custom was unreasonable, because we are not called upon here to enforce a custom which tends to vary a written and unambiguous instrument, but only to consider an evi dently ambiguous instrument in view of a conceded though possibly unreasonable custom. The proof of the custom was not only material, but appears to me to be practically conclusive as showing the intent of the parties, and should not have been disregarded by the trial justice.

Judgment should be reversed and a new trial ordered.

Judgment affirmed, with costs.