Opinion
December, 1913.
A.L. Kalman, for appellants.
Stewart C. Pratt, for respondent.
The plaintiffs brought an action against the defendant railroad company, claiming that the defendant had failed and neglected to deliver certain goods consigned to them within a reasonable time; that the goods were intended for a certain season, and that by reason of the defendant's failure to deliver within a reasonable time the goods could not be used during the season for which they were intended and thereby became valueless or almost valueless.
It appears undisputed that the goods were actually received by the defendant in New York on April twenty-ninth, and that on that day and before the goods were checked out of the car in which they had arrived, an arrival notice was sent to the plaintiffs. On May second the plaintiffs sent a truckman to the defendant's pier with the arrival notice. The truckman paid the carrying charges but failed to obtain the goods. The clerk to whom the notice was tendered wrote the word "Short" across the notice. The word "short" is concededly the term used when goods cannot be found on the unloading of a car in which they were supposed to be shipped. On May second the defendant sent the plaintiffs a second arrival notice. On May fourth one of the plaintiffs in person asked for the goods, bringing the original notice marked short, and a clerk again stated that the goods could not be found and added: "Don't you see they are marked short?"
On May seventh the same plaintiff called at defendant's office again and asked for the goods. The clerk again failed to find the goods and advised the plaintiff to put in a claim, which the plaintiff did on May tenth. On May seventeenth the plaintiffs received a third arrival notice but made no further efforts to obtain the goods, relying on the claim which they had put in.
The defendant attempts to meet this evidence by showing the arrival of the goods on April twenty-ninth, and the sending out of the successive notices, and by showing that the person in charge of shortages was the property clerk, and that if the plaintiffs had applied to him they would have received the goods.
It is the contention of the defendant that the plaintiffs were negligent in failing to make other and further efforts to obtain the goods, and especially in failing to apply to the proper clerk in charge of the shortages.
Upon this record I cannot find that the defendant's contention is sustained. It was the defendant's duty as carrier to deliver the goods on reasonable demand. The plaintiffs made three demands upon persons apparently held out as the clerks by whom deliveries were to be made, men who were working in defendant's office at a desk marked "answers." It was not the duty of the plaintiffs to go further and at their peril ascertain the business organization of the defendant, or whether there was a man in that organization whose duty it was to seek out shortages. The plaintiffs had done their full duty when they made three fruitless demand on the defendant in its office, upon clerks who were apparently clothed with authority to answer inquiries, especially when one of these clerks then told them to make a claim, and the claim was received and investigated by the defendant. The plaintiffs' failure to make these inquiries of the clerk in actual charge of the shortages would be material only if the plaintiffs failed to prove that they made inquiries of the persons held out for this purpose.
Judgment should be reversed and a new trial ordered, with costs to appellants to abide the event.
PAGE and WHITAKER, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellants to abide event.