(29 Misc. Rep. 443.)

#### TALCOTT v. WABASH R. CO.

(Supreme Court, Trial Term, New York County.

December, 1902.)

1. Carriers — Excess Baggage — Contract—Commercial Traveler.

Where a commercial traveler pays the proper excess baggage rates on trunks containing, among other things, his employer’s goods, and the agent checks the trunks to the traveler’s destination, and gives him a voucher for the excess payment, the carrier is bound to his employer, as an undisclosed principal, for the transportation of the goods.

2. Same — Loss—Action eor Damages.

Where a traveling man had four trunks, and in them was property belonging to various principals, and all the trunks were delivered to a *150carrier, and while in transit on a connecting line a fire occurred, by which three of the trunks were destroyed, and the trunks were not separately weighed, but were charged for in bulk, and in one of the trunks were the personal belongings of the traveling man, there was insufficient evidence .on which to base'an action for damages on the part of one of the principals.

Action by James Talcott against the Wabash Railroad Company. Complaint dismissed.

Bunnell & Bunnell (Charles E. Hughes, of counsel), for plaintiff.

George F. Brownell (George F. Brownell and C. V. Nellany, of counsel), for defendant.

FITZGERALD, J.

It is unnecessary to make any detailed statement of the facts as disclosed by the testimony submitted herein for the reason that they are fully set forth in the opinion of the learned court above. Talcott v. Railroad Co., 159 N. Y. 461, 54 N. E. 1. But-one question outside of the subject of damages remains to be determined: What, in fact, was the contract entered into by plaintiff’s agent with defendant for the transportation of the excess weight of the material carried in trunks for which extra charges were made and paid? Plaintiff’s agent purchased from defendant for his own use a passage ticket, which entitled him to carry a limited amount of baggage free. Baggage in excess of this limit might be carried upon payment of an extra charge. The passenger in this case was a commercial traveler in plaintiff’s employ, and it appears to be customary with railway companies to carry in. the ordinary baggage cars accompanying passenger trains trunks containing samples of the various lines of stock the sale of which the commercial agent is engaged in, and it has been held that he may, by an independent contract, bind the railway company to his employer for the-transportatian of such property entirely independent of the ordinar)r agreement which usually arises from, the purchase of a passage ticket for the carrying of the passenger’s personal effects. Millard v. Railroad Co., 86 N. Y. 441. The law is well settled that a railway company which sells a passage ticket giving the right of travel from one place to another, but which ticket clearly indicates by coupon or otherwise that the journey to be made extends beyond.its own terminus, and is to be continued over connecting lines, acts, in so far as the sale of the ticket is concerned, merely as the agent of the connecting line, and is not responsible for baggage further than to transfer it safely to the custody and care of its principal. Milnor v. Railroad Co., 53 N. Y. 363; Kessler v. Railroad Co., 61 N. Y. 538. The passenger in this instance had with him four trunks; and in these trunks property was contained belonging to various parties. Part • of said property belonged to plaintiff; part to the New Britain Knitting Company, part to the American Hosiery Company, and the remainder consisted of personal effects. All of the trunks were safely delivered by defendant company at the terminus of its line at Detroit to the Grand Trunk Railway, and while in transit over this latter line a fire occurred by which three of the four trunks were destroyed. A voluntary nonsuit was submitted to upon the trial on the causes of action set*151ting forth the loss of the property belonging to the New Britain Knitting Company and the American Hosiery Company, and it is res adjudicata in this case that defendant was not liable for the loss of the passenger’s personal effects. Talcott v. Railroad Co., supra. Is it liable for the loss of plaintiff’s property ? The answer to this question depends on the terms of the second contract. What was the consideration paid, and what was it, as understood and agreed between the parties, that was to be done? Assuming that the payment of $16 constituted the consideration for which all of the excess weight was carried, the property so paid for belonged to different owners. It was charged for in bulk. The trunks were not separately weighed. One was subsequently returned, but there is no evidence of its weight. One of those lost belonged to the knitting and the hosiery companies, and its weight is equally unascertainable. For aught shown to the contrary, the entire extra charge may have been paid for the goods contained in these two trunks;' but, to add to this confusion, it appears from the record that the passenger’s personal effects weighed only 50 pounds, and that testimony conclusively establishes the fact that he was permitted to carry 100 pounds of some of these various other owners’ property free upon his ticket. Upon no possible theory could defendant be held liable for the loss of goods to the extent of this 100 pounds. I have eliminated the purchase, possession, and presentation of the ticket by the passenger at the time of the shipment of the trunks as constituting any part of the consideration for which excess weight was carried; but must not the terms and conditions of that ticket be considered at least as evidence tending to establish what was in his mind when the second agreement was made? Did he not desire to take all the trunks upon the train on which he was personally traveling? Were not the limitations as to the risks assumed annexed to his coupon ticket present before him when making the second contract? Do not the marks upon the pasteboard check and brass checks given him by the baggage agent show that the trunks were to go beyond the terminus of defendant’s line, and upon the lines of other railway companies; and would it not be unreasonable to hold, in view of all these facts, that two distinct and different propositions were mutually simultaneously present in the minds of the contracting parties, — one a contract upon the ticket, limited as to defendant’s liability by its terminus at Detroit, and the other a contract binding the defendant for the excess covering the entire journey from Chicago to New York? No matter how these matters may be viewed, it would be utterly impossible, for the reasons previously shown, to arrive at any accurate measure of damages, and plaintiff’s complaint must be dismissed.

Complaint dismissed.