Holford v. Adams.

IV. The decision of the court should be affirmed, with costs.

BY THE COURT.-We think that all the questions that have been argued before us were rightly decided by the judge at special term; and we deem it unnecessary to state any reasons for our opinion, in addition to those which he has given. He might, with entire propriety, have left the parties to bear separately their own costs, but the mode in which he has exercised his discretion in relation to the costs, is not an error, if an error at all, of which the defendant has any right to complain. The judgment is, therefore, affirmed with costs.

HOLFORD V. ADAMS, and others.

The defendants, an Express Company, received from the agents of the plaintiffs at New Orleans, a package, valued at $40,000, to be transported and delivered to the plaintiff at New York. By the terms of the receipt given for the package, the defendants were not to be responsible for any loss or damage not arising from their own fraud or gross negligence, or that of their servants; and it was proved that there was the same care in the transportation of all articles without regard to their value. When the package arrived at New York, the defendants refused to deliver it to the plaintiff, unless upon the payment of $400, being 1 per cent. upon its estimated value.

Held, that, under these circumstances, there was no reason for enhancing the charge for transportation in proportion to the value of the articles transported, and that the charge made was therefore, primâ facie, unreasonable and extravagant.

Held also, that the charge was not justified by usage, the usage proved not being general, but that of the defendants alone, and there being no proof that it was known to the plaintiff or his agents.

(Before OAKLEY, Ch. J., and EMMET, J.)

November 11; December 10, 1853.

APPEAL by plaintiff from a judgment, at special term, upon exceptions taken at the trial.

The action was for the delivery of personal property, with damages for its detention.

Holford v. Adams.

The complaint charged that Robb & Co., agents of the plaintiff at New Orleans, on the 11th of December, 1851, delivered to the defendants, transacting business under the name of Adams & Co., a package, containing Arkansas bonds of $1,000 each, with coupons attached, belonging to the plaintiff, to be transported by the defendants, by steamer, from New Orleans to the city of New York, and there to be delivered to the plaintiff for a reasonable consideration, to be paid by him to the defendants. That, when the package was so delivered, the agent of the defendants, at New Orleans, signed and delivered a receipt therefor, by which it was stipulated that the defendants should not be responsible for any loss or damage arising from the dangers of the sea, steam or river navigation, or from any cause whatever, unless the same should be proved to have occurred from the fraud or gross negligence of the defendants, their servants, or agents.

The complaint then averred that the defendants had transported the package to New York; that he, the plaintiff, had tendered to them a reasonable sum as a compensation for transporting it, and had demanded its delivery; but that they had refused to deliver and still retained it: and then demanded judgment in the usual form.

The defendants, in their answer, denied that the package containing the bonds was delivered to them, to be transported to New York, and there delivered to the plaintiff for a reasonable consideration. They denied that any receipt was signed or given, as alleged in the complaint; and that the plaintiff had offered to pay to them a reasonable sum as a compensation for transporting the package.

They averred that when the package was delivered to them at New Orleans, Robb & Co. expressly stated that the bonds which it contained were of the value of $40,000; and that it was then expressly understood and agreed between them and Robb & Co., that, in consideration of their taking charge of, transporting, and delivering the package, the plaintiff would pay to them, upon its delivery to him in New York, one per cent. upon the value of the bonds, as represented and fixed. They then insisted that they were entitled to retain the possession of the bonds until this sum, amounting to $400, should be

Holford v. Adams.

paid, which they averred was no more than a reasonable and usual compensation for the transportation of similar packages. The reply took issue upon the new allegations in the answer.

The cause was tried before PAINE, J., and a jury, in December, 1852. Upon the trial, the counsel for the plaintiff read the following stipulation.

"Whereas this suit has been commenced by the plaintiff to recover the possession of certain bonds and coupons in the complaint described, and damages for the detention thereof, and the defendants' claiming a lien on said bonds and coupons, and a right to detain the same, for their labor and services in the transportation thereof, from New Orleans to the city of New York.

"And whereas the defendants have surrendered up to the plaintiff the possession of said bonds and coupons under the agreement hereinafter set forth.

"Now it is stipulated and agreed between the attorneys for the respective parties, that, upon the trial of this action, the jury shall assess the amount to which the defendants are entitled for such labour and service; and that in case the amount so assessed shall exceed the amount heretofore tendered by the plaintiff, namely, twenty dollars, the defendants shall be entitled to judgment with costs, and the plaintiff shall, upon demand, pay to the defendants such judgment, and the costs and extra allowance of this suit, or return such bonds and coupons to the defendants, to be held by them as a security for the payment thereof, in the same manner, and with the same right of lien, as though they had never parted with the possession thereof.

"Dated, New York, April 3d, 1852.

"TUCKER & CRAPO,

"Att'ys Pltff.

"E. H. OWEN,

"Defts. Att'y."

The counsel for the plaintiff then rested his case.

It was then admitted by the counsel for the defendants, that

Holford v. Adams.

a receipt for the package had been given by their agent at New Orleans, which corresponded in its terms with the statement in the complaint.

The counsel for the plaintiff then admitted, that on the outside of the envelope which contained the bonds was endorsed the words and figures "James Holford, Esq., 49 William street, New York-value $40,000."

The counsel for the defendants then called

A. L. Stinson, who, being sworn, testified as follows: I am an express man in Adams & Co.'s office; I have been there about three years; I am in the New Orleans department; I have charge of it; the business of Adams & Co. consists in transporting parcels and freight to most parts of the country, and also to California; they also transport valuable packages, which compensates for the small amounts they receive for the carriage of articles of small intrinsic value; in the transportation of parcels, the valuable parcels compensate for transporting less valuable packages, and enable Adams & Co. to transport the less valuable packages cheaper than they otherwise would; we have agencies at the principal points of the Union.

Being asked by the defendants' counsel, what was the usual compensation of Adams & Co., for receiving at New Orleans, and for transporting and delivering in New York packages of value; the question was objected to by the plaintiff's counsel, which objection was overruled by the judge; to which decision of the judge the plaintiff's counsel excepted. The witness answered one per cent. on the value of the package.

The counsel for the defendants then asked the witness: What is the usual charge of other express men and carriers, for transporting packages of value from New Orleans to New York?

To which question the plaintiff's counsel objected, which objection was overruled; to which decision of the judge the plaintiff's counsel objected.

The witness then answered: One per cent. on the value, that is the usual charge of Adams & Co.; it is my impression that the steam-ships charged at the same rate; it is invariably

Holford v. Adams.

our customary charge; we make special bargains with people sometimes.

Being cross-examined by the plaintiff's counsel, the witness testified:

There are, I think, about sixty Express offices in the city of New York; this number includes all sorts; the local expresses as well as the large ones; I never was employed in the express business before I engaged with Adams & Co.; I have never known Adams & Co. to transport Arkansas bonds before; I don't remember their transporting any bonds except some Texas bonds; I can't say whether they did or not; I don't remember any other bonds than the Texas and Arkansas bonds.

Being asked by plaintiff's counsel what articles of value the defendants have forwarded, he says:

I cannot name any article of value particularly; I cannot name a single parcel; I remember a parcel of gold dust worth $1,000.

Being again examined in the direct, the witness said:

Packages, when brought to us to be forwarded, are usually sealed; we rely as to the value of the package on the declaration of the party employing us; sometimes he don't declare its value; we then let it go as a common parcel; the charge on these bonds as a common parcel would have been $1.50; there is no difference between parcels of valuable goods and common articles in the care we take of them; we charge one per cent. on the value over a certain amount; I remember the bill of this parcel; when this package was received it was sealed; we always ask as to the contents.

Being again cross-examined, the witness testified:

We did not insure this parcel; I remember forwarding gold dust; they sometimes transport goods for jewellers, and we generally make a bargain with them as to compensation.

In answer to a question of the judge, the witness said, the receipt produced is in the common form of the receipts we give.

In answer to a question from one of the jury, the witness said, I do not remember that we ever carried anything for Robb or Holford except this one package.

The defendants' counsel then called