South Deerfield Onion Storage Co. v. New York, New Haven, & Hartford Railroad , 222 Mass. 535 ( 1916 )

Braley, J.

If not in contravention of established rules of law and in the absence of any provision to the contrary, a local or special custom regulating the delivery of goods forms part of the contract of shipment. Barrie v. Quimby, 206 Mass. 259, 265. And as the jury upon all the evidence would have been warranted in finding a custom that, where a car upon arrival at the place of destination was refused or not accepted, the defendant gave notice to the shipper within forty-eight hours thereafter, the rights of the parties are to be determined as if this provision had been inserted in the bill of lading. Garvan v. New York Central & Hudson River Railroad, 210 Mass. 275, 279.

While title remained in the plaintiff as shipper and consignee, the bill of lading required that notice be given to one Schwartz, who not having paid the draft to which the bill of lading was attached, acquired no title. Alderman v. Eastern Railroad, 115 Mass. 233. North Pennsylvania Railroad v. Commercial National Bank of Chicago, 123 U. S. 727. It is of no consequence that Schwartz did not refuse categorically to accept delivery. The delay covered by the custom arose when from his conduct delivery could not be effected after he received notice, and, having no authority to deliver without the production of the bill of lading properly indorsed, the defendant, not having assumed the position of warehouseman, remained liable as carrier. Stevens v. Boston & Maine Railroad, 1 Gray, 277. Newcomb v. Boston & Lowell Railroad, 115 Mass. 230. Its failure to notify the plaintiff within the stipulated time that delivery could not be made was a breach of the contract. We find no error in the refusal of the defendant’s first, second and third requests.

It also asked for a ruling that on all the evidence the plaintiff could not recover, and now urges that the delay was attributable solely to the plaintiff’s fault. But the jury could say that the plaintiff rightly relied on the custom. In the absence of notice it could not be ruled as matter of law that contributory negligence had been shown, and no exceptions were taken to the instructions.

It was also a question of fact whether, having undertaken the duty of transportation, the defendant knew or in the exercise of ordinary diligence should have known that the contents of the car unless properly cared for might deteriorate. The onions, in good condition when shipped and in a commercial sense perishable, were kept in a closed car nearly fourteen days after arrival before notice to the plaintiff, during which owing to climatic conditions they sprouted and decayed. And the jury could find that the resulting loss was caused by the defendant’s negligence. Garvan v. New York Central & Hudson River Railroad, 210 Mass. 275. Hudson v. Baxendale, 2 H. & N. 575. St. Clair v. Chicago Burlington & Quincy Railroad, 80 Iowa, 304.

It would follow on these findings that nothing remained but the assessment of damages.

Exceptions overruled.