Katz v. Weir

MacLEAN, J.

(dissenting). Proven that the plaintiffs’ clerk at the rear .entrance of the plaintiffs’ place of business delivered a parcel to the driver (whose cap bore the name of Adams Express Company), upon a wagon bearing the same well-known sign and waiting on Crosby Street just opposite the defendant’s branch office, and that the driver' signed the receipt (produced on the trial) for the parcel on one of the defendant’s forms, the defendant contends the case is not made out, because the signature, "is no.t 'recognized by a certain few of the defendant’s many servants; three of the drivers who regularly served that route testifying tliey did riot sign or know the signature and testifying, too, that substitutes sometimes served their route." and that helpers on the wagons on occasions signed receipts. That process of elimination of the "defendant by exhaustion is too incomplete to mean anything. If it may be held as a defense, then all of us are weakly unwary who, as most of us do, deliver for transportation to drivers in finiforrii upon wagons, both labeled with the familiar title “Adams Express Company.”

The judgment should'be reversed.