Collender, survivor, &c., vs. Dinsmore, President of the Adams Express Company

Collender, survivor, &c., vs. Dinsmore, President of the Adams Express Company. The plaintiff delivered to the defendant’s company, at New York, two boxes of merchandise, marked “ A. King, Clifton House, Windsor, N. S.,” with the additional words, letters and figures: “ C. O. D, $378 from Turner’s Express, Boston, Mass.” In an action against the defendant for neglecting to collect of Turner’s express company, the $378 on delivery of the goods; held, that if the terms used in the direction were not such as could be ordinarily understood, without explanation, evidence to show what the common understanding of them was, among express companies, was proper. Eeld, also, that the propriety of admitting evidence of mage among express companies, in regard to such instructions, in the absence of proof that the plaintiff was acquainted with such usage, was doubtful. But, it being proved that the plaintiff knew of the existence of the custom, as applying within the United States; it was held that with such knowledge, on his part, he must be supposed to have contracted in reference to the usage; and evidence was therefore admissible to prove what the usage was, in cases where packages were sent with such directions. The evidence of usage showed that where the directions are, “ O. O. D. on delivery,” the goods are to be delivered by the company receiving them to the next one, to be carried to the consignee, and the last company is to collect from the consignee, and return to the vendor through the company to which the package was first delivered. Held, that this evidence did not sustain the plaintiff’s claim that the defendant was hound to collect from Turner’s express company, at the time of delivery, and before the goods reached the consignee. The witnesses who were examined as to usage, testified that they understood the direction in this case, although unusual, as intending the same thing; that Turner’s express was named as the connecting link; and that the defendant was not bound to collect from that company until after the goods had been received by the consignee. Held, that if this evidence was properly admitted, a finding of the referee in favor of the defendant was amply warranted by it. Held¡ further, that although there might be some doubt upon the question whether the usage, in respect to the ordinary direction to collect on delivery, could control under the special direction given in this case, to collect from Turner’s express company; yet that it seemed so improbable that any company would advance so large a sum for the purpose of merely carrying the freight, and take the risk of payment by the consignee, the finding of the referee in favor of the defendant was correct. APPEAL by the plaintiff from a judgment entered upon the report of a referee. The action was brought to recover damages for the breach of a written contract for the collection of charges upon property which the defendant had received for transportation. The action was referred to a referee, who found the following facts, viz: “ First. At the several times referred to in the complaint, the plaintiffs were copartners in business in the city of New York, under the firm name and style of Phelan & Collender. . Second. The plaintiff Michael Phelan, has deceased since the commencement of this suit, and Hugh W. Collender is the survivor of said firm. Third. At the times in said complaint referred to, the Adams express company was and now is a joint stock association in the city and State of New York, and William B. Dinsmore was at such times and now is the president of such company. Fourth. On the 35th day of November, 1861, the plaintiffs delivered to the defendant, in the city of New York, two boxes of merchandise and two cases of slate, constituting one billiard table, marked and directed as in the bill of lading herein referred to. Fifth. At the time of the delivery of such property, the defendant, on request, of the plaintiffs, executed the bill of lading, a copy of which is annexed to the defendant’s answer herein, and such bid of lading prior to such execution was filled out by the plaintiffs, and tendered tb the defendant for signature. Sixth. No other contract was made between the parties for the transportation of the said goods than the said bid of lading. Seventh. The initial letters, “0. O. D.,” in said bid of lading were first adopted by express companies, including the company defendant, as a convenient and easy method of signifying that there was to be codected from the consignee, upon the dedvery to bim of the property transported, the sum mentioned in the bid of lading upon which such initials were written, and which given sum of money usually followed in figures such initials. Eighth. Such initials invariably meant, and now mean, “codect on delivery of the property, from the consignee thereof, the sum named by the shippers, and stated in said bdl of lading.” Ninth. The express companies do not codect the amount of the C. O. D. on the intermediate dedvery of the property by one express company to another, but the latter codects the amount from the consignee, and returns it to the express company by whom such property was first received, to be by it returned to the shippers. Tenth. The plaintiffs at the time of the execution and dedvery of the said bid of lading knew the meaning of the said initials letters, “C. O. D.,” and that intermediate express companies did not pay to the express company originady receiving the shipment, the amount of the C. O. D., until the same had been received from the consignee. Eleventh. The route of the defendant’s company extended only to Boston, Mass., and not beyond that, in the direction of Windsor, ¡Nova Scotia; and Turner’s express was the connecting express in Boston to carry goods to Windsor, ¡Nova Scotia; and such several facts were at the time of the delivery of the goods in question by the plaintiffs to the defendant, and the execution and delivery by him of the bill of lading aforesaid, well known to the plaintiffs. Twelfth. The defendant caused the property referred to in said bill of lading, to be. safely carried to Boston aforesaid, and there delivered to the said Turner’s express. Thirteenth. Said Turner’s express have never accounted to the defendant for the proceeds of the said C. O. ¡D. so to be collected by it from the consignee of the property mentioned in said bill of lading. The defendant has endeavored to collect the same, but has been unable to do so, Turner’s express company having failed and become insolvent.” As a conclusion of law, the referee reported that the plaintiff was not entitled to recover in this action, but that the defendant was entitled to judgment in his favor, dismissing the complaint on the merits, with costs. M. Nolan, for the appellant. Charles M. Dacosta and Samuel A. Blatchford, for the respondent. [MAJORITY — By the Court, Ingraham, P. J.] By the Court, Ingraham, P. J. The plaintiff delivered to the defendant’s company two boxes of merchandise, for transportation, marked “A. King, Clifton House, Windsor, ¡NT. S.,” with the additional words and letters following, “C. O. D. $375 from Turner’s express, Boston, Mass.” The express company transported the packages to Boston and delivered them to Turner’s express company, but did not, at the time, receive the amount to be collected. They afterwards applied to Turner’s express company for the money, but were unable to collect it from them, in consequence of the failure of that company. Upon the trial of the cause, the plaintiff gave evidence to explain the terms used in the direction, to which the defendant excepted. The referee found for the defendant. If the terms used were not such as could be ordinarily understood without explanation, evidence to show what the common understanding of them was, among express companies^ was proper. Ho such use of the words is shown as to warrant the belief that they could be so understood; and although some persons may, from the use of these terms in their business, have become familiar with them, still to persons not accustomed to them use, some of the terms would be meaningless, unless explained by evidence. There is more difficulty as to the propriety of admitting evidence of usage among express companies as to such instructions; and in the absence of proof that the plaintiff was acquainted with such usage, I should doubt as to the propriety of admitting it. But it was in proof that the plaintiff knew of the- existence of the custom as applying within the United States. With such knowledge on his part, he must be supposed to contract in reference to the usage, and the evidence on that point was admissible. There was, therefore, no error on the part of the referee, either in the explanation of the terms used, or in the proof of the usage where packages were sent with such directions. The plaintiff claims that the defendant was bound to collect from the express company at the time of delivery, and before the goods reached the consignee. [First Department, General Term, at New York, January 6, 1873. Ingraham and Fancher, Justices.] The evidence of usage shows that such was not the custom where the directions were “ C. O. D. on delivery,” and that' in snch cases the goods were to be delivered by one company to the next one, to be carried to the consignee, and the last company was to collect from the consignee, and return to the vendor through the company to which the package was first delivered. The form used in this case appears to have been unusual, but the witnesses who were examined as to usage testified that they understood this direction as intending the same thing; that Turner’s express was named as the connecting link ; and that the defendants were not bound to collect from that company until after the goods had been received from the express company by the consignee. If this evidence was properly admitted, the finding of the referee is amply warranted by it. There may be some doubt upon this question, whether the usage in the ordinary direction to collect on delivery, could control under the special direction given here to collect from Turner’s express company. It seems, however, so improbable that any company would advance so large a sum for the purpose of merely carrying the freight, and take the risk of payment by the consignee, that we are inclined to think the construction given by the referee was the correct one. The offer of testimony after the defendant rested was addressed to the discretion of the referee. It should have been given before, and his refusal to admit it at that time was not error. Judgment affirmed.