Opinion
June 6, 1919.
Robert C. Moore [ Edward B. Levy with him on the brief], for the appellant.
Graham Witschief, for the respondent.
Several months before this shipment, plaintiff had written defendant that plaintiff's terms of shipment were to be "F.O.B. Chicago," and that claims for damage must be made to carrier. The shipment was so made on December 19, 1916, in boxes marked "Keep from Freezing, Ship in Refrigerator Car." The bill of lading with invoice was received by defendant and retained without objection for about two weeks. When, on January fifth, the goods arrived frozen, defendant sent back the shipping documents by mail to plaintiff. Although there had been delay in filling this order which had been originally mailed to plaintiff's New York agent on November twenty-first, such delay was not a proximate cause of the damage. The title passed by the bill of lading. Defendant's secretary and manager who received the shipping documents admits he retained them to await arrival of the goods, and that he would have accepted them had the articles not been frozen. Such deterioration in transit follows the title in the consignee, so that such a consignee cannot rescind the shipment where the documents had thus been retained without objection.
It follows that the judgment must be reversed, and new findings made, on which plaintiff should have judgment, with costs in both courts.
JENKS, P.J., PUTNAM, BLACKMAR, KELLY and JAYCOX, JJ., concurred.
Judgment reversed, and new findings made, on which plaintiff should have judgment, with costs in both courts. Order to be settled before Mr. Justice PUTNAM.