Earle v. Cadmus , 2 Daly 237 ( 1867 )

By the Court.—Daly, F. J.

The delivery of the receipt by the defendant’s agent after receiving the" check for the plaintiff’s baggage, was sufficient evidence of a delivery of the trunk to the defendant for the purpose of carriage. If it could not be procured upon the steamboat on exhibiting the check for it, it was for the defendant to show it. As he offered no evidence upon that point, the presumption must be, that it was obtained, and as he did not deliver it, nor account in any way for its loss, the presumption must be, that it was lost through his negligence (Arent v. Squire, 1 Daly, 347).

The plaintiff was competent to testify as to the value of the articles contained in the trunk, which she had purchased herself, and both as respects them and the other articles, the testimony as to value, on the part of the other witnesses, was amply sufficient to warrant the finding of the justice on that point. ,

Without discussing the question, whether the defendant could, or could not, limit his liability, by the delivery of such a printed receipt to the plaintiff’s agent, it is sufficient to say, that the condition was that the defendant would not be liable for an amount exceeding fifty dollars upon any article, and that no article contained in the trunk exceeded that amount in value; the highest valuation put upon any one article being $40.

The proof as to the custom of express companies, in limiting their liability, was immaterial, as the defendant relied upon .the special acceptance, contained in his printed receipt.

The judgment should be affirmed.