Citation Numbers: 58 Misc. 369, 110 N.Y.S. 1095
Judges: Bischoff
Filed Date: 3/15/1908
Status: Precedential
Modified Date: 1/13/2023
The plaintiffs had a verdict for the loss of goods intrusted to the defendant under a contract for carriage, and upon the trial the defendant’s efforts were wholly directed to show that the goods were never received by it. It is now contended that the recovery was defective in that it did not appear that the defendant did not deliver the goods to the connecting carrier at the terminus of its own line, such being the extent of its obligation as per the bill of lading in evidence. The fact of such nondelivery, however, was apparent from the defendant’s attitude at the trial. Admission of the fact of nondelivery to the connecting carrier was the only logical deduction from the defendant’s denial of its receipt of the goods. 'Allegans contraria non est wudiendus. Broom Leg. Max. (8th Am. ed.) 169. The court, therefore, consistently with the defendant’s position, submitted the question of the defendant’s receipt of the goods to the jury and instructed them that nondelivery in due course to the connecting carrier was conceded. The precise point was ruled in Hot Springs R. R. Co. v. Hudgins, 42 Ark. 485; 18 Am. & Eng. R. R. Cases, 643. In affirming a judgment for the shipper the court there said: “By denying that it had ever received the goods for transportation, the defendant admitted that it had never delivered them to Senter & Co. Consequently, when it was proved that the defendant had received the cotton under a contract for carriage, the case was legally adjudged against it.” The case at bar is readily distinguishable from Roberts v. Chittenden, 88 N. Y. 33. In that case the contract for carriage and the shipment of the goods were conceded. Under such circumstances, the proposition that the carrier’s breach of contract does not appear in the absence of proof of nondelivery of the goods in due course to the connecting carrier seems elementary and is not debatable. Of necessity, the jury were to be instructed consistently with what was at the time the defendant’s attitude, and the court’s inconsistency was not
Motion for new trial denied, without costs.