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Blackburn Trading Corp. v. Export F.F. Co., Inc.

Appellate Division of the Supreme Court of New York, First Department
Feb 9, 1923
204 App. Div. 445 (N.Y. App. Div. 1923)

Opinion

February 9, 1923.

Macklin, Brown Van Wyck [ William Van Wyck of counsel; James M. Gorman with him on the brief], for the appellant.

Thomas G. Prioleau, for the respondent.


The plaintiff stored in a warehouse at 403 West street, New York city, eleven cases of blue denims and one case of blue denims No. 4, until the same should be called for by the plaintiff. The claim of the plaintiff is that this storehouse was conducted by the defendant and that the defendant is liable for failure to deliver the goods to the plaintiff. The claim of the defendant is that the defendant was acting simply as the storage broker for the Penn Transportation Company, Inc., which company owned the storehouse, and with which company the goods were stored before the demand for their return.

Upon September 24, 1919, the defendant sent to the plaintiff a circular or letter in which they advertised themselves as a storage company and stated their storage warehouse to be at the place in question and asked the plaintiff's patronage. Thereafter, the plaintiff did store in said warehouse certain articles which are not in question here. The bills were sent to the plaintiff with the addition of the words "To Penn Transportation Co., Inc." These articles stored were returned whenever demanded and this course of business continued until October 21, 1919, when the goods in question were stored. For those goods in question the plaintiff received a warehouse receipt signed by the Penn Transportation Company, Inc., October 21, 1919. Upon the same date this receipt was signed the plaintiff executed another paper which was received, however, only for identification, that purported to be a receipt from this defendant, a non-negotiable receipt of the Penn Transportation Company, Inc., also a receipted freight bill. The plaintiff received and paid a bill for the storage of these very denims sent to the plaintiff from the defendant with the words thereon "To Penn Transportation Co., Inc." The defendant offered proof of the relations between the Penn Transportation Company, Inc., and the defendant to the effect that the defendant was simply the storage broker for the Penn Transportation Company, Inc. This proof was rejected by the trial court, and in this ruling we think the trial court was in error.

The court stated in directing the verdict: "My idea is in this case, the fact the Penn Company issued a false receipt has nothing to do with this at all. The goods were stored when the receipt was delivered, and the receipt was a false receipt, and that the solicitor, Mr. Walcott, was their solicitor; he represented these people; they were in the storehouse business; the bill shows they were in the warehouse business, and as far as the plaintiff is concerned, he had a right to rely absolutely upon this defendant."

Whether this receipt was a false receipt issued by the Penn Transportation Company, Inc., cannot be held as a matter of law from the evidence here, and certainly not after the improper exclusion of the relations between the Penn Transportation Company, Inc., and this defendant. Neither can it be held that the plaintiff was acting or negotiating with the defendant who was acting for an unknown principal, as the receipt for this very storage was signed by the principal, the Penn Transportation Company, Inc., and all of the bills sent had upon them a reference to the Penn Transportation Company, Inc., in such a way as to indicate that such a company had an interest in the contract. The evidence showing the relations of the Penn Company to the defendant should have been admitted, and upon that evidence should first be determined, as a question of fact, whether the contract was in fact with the Penn Transportation Company, Inc., through defendant as its agent, or with defendant without knowledge that it was acting as an agent. If the contract was not with the defendant, of course, the defendant is not liable. If the contract was with the defendant and the defendant was acting for a known principal, in an action against that principal the question would further arise as to whether proper precautions had been taken for the securing of the goods against burglary.

The judgment should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

CLARKE, P.J., MERRELL, FINCH and McAVOY, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.


Summaries of

Blackburn Trading Corp. v. Export F.F. Co., Inc.

Appellate Division of the Supreme Court of New York, First Department
Feb 9, 1923
204 App. Div. 445 (N.Y. App. Div. 1923)
Case details for

Blackburn Trading Corp. v. Export F.F. Co., Inc.

Case Details

Full title:BLACKBURN TRADING CORPORATION, Respondent, v . EXPORT FREIGHT FORWARDING…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 9, 1923

Citations

204 App. Div. 445 (N.Y. App. Div. 1923)
198 N.Y.S. 133