#### Sigmund Nathan, Plaintiff, *v.*William H. Woolverton, as President of New York Transfer Co., Defendant.

(Supreme Court, Kings Trial Term,

November, 1910.)

Carriers — Carriage of baggage and passengers’ effects — In general — Failure to disclose extraordinary value.

Where a passenger upon a railway checks his trunk without notice at the time to the carrier that it contains anything but ordinary personal baggage, though the trunk in fact contains merchandise of very large value, his silence may constitute a fraud upon ■the' carrier, and, in case of loss of the trunk, prevent him from recovering its value in an action for breach of the contract of carriage.

Action upon a contract. The opinion states the facts.

Robert L. Tuck, for plaintiff.

Hill, Lockwood, Redfield & Lydon, for defendant.

Jaycos, J.

At the time of the trial of this action the court held “ that the question of the concealment of value, upon the undisputed facts of the agreement and of the silence of the plaintiff, was one of law for the court and not of fact for the jury ” (Magnin v. Dinsmore, 62 N. Y. 35—44) ; and that question was not submitted to the jury. At that time the court took the view that the facts were undisputed, and they are, in so far as what occurred when plaintiff delivered his cheek to the defendant agent and received defendant’s check. In my opinion, again quoting from Magnin v. Dinsmore, *supra, “*silence only as to value amounted to such an imposition upon the defendant as would relieve it from a liability for the total value of the goods unless something more in its conduct is shown than negligence to carry safely and to deliver promptly.” I cannot see how any other conclusion, can he arrived at, if the contract is deemed complete when the check was delivered to defendant’s agent and plaintiff took defendant’s check. There is nothing about such a transaction *426to warn defendant or in any way to indicate to him that plaintiff’s trunk was anything bnt ordinary personal baggage; nothing to indicate that, instead of receiving the ordinary personal apparel of the ordinary traveller of very limited value, he was receiving a stock of merchandise of very large value. I do not think it can he presumed that travellers ordinarily carry baggage of such value or character as is here shown. Again quoting from Magnin v. Dinsmore, *“A*shipper may 'become chargeable with fraud upon a carrier, through imposition and deception, as well when he is silent as when he speaks that which is untrue. A neglect to disclose the real value of a package, and the nature of its contents, if, therewith there is that in its form, dimension and other appearance designed, and even if not designed, if fitted to throw the carrier off his guard, will he conduct amounting to the fraud now spoken of. The intention to impose upon the carrier is not material, it is enough if such is the practical effect of the conduct of the shipper.”

When a check, without explanation, is presented to a carrier, it seems to me it cannot be disputed that it is tantamount to a representation that it is an ordinary trunk containing ordinary baggage. And, if it subsequently transpires that the trunk in fact did contain a large amount of jewelry, it is a fraud upon the carrier which will relieve the carrier from liability. 6 Cyc. 668; Orange Co. Bank v. Brown. 9 Wend. 85.

Aside from this, the mere fact that the trunk held goods other than baggage has been held to absolve the carrier from liability for such goods. Simpson v. N. Y., N. H. *&*H. R. R. Co., 16 Misc. Rep. 613; Sloman v. Great Northern R. Co., 6 Hun, 546; Hawkins v. Hawkins, 6 Hill, 546; Parde v. Drew, 25 Wend. 549.

The carrier cannot be held liable for the loss of merchandise carried in the trunk of a shipper of which the carrier had no knowledge. Gurney v. Grand Trunk R. Co., 14 N. Y. Supp. 321; 138 N. Y. 638; Cattaraugus C. Co. v. Buffalo, R. & P. R. Co., 48 N. Y. Supp. 451.

I think it must be held as a matter of law that the contract in suit was entered into at the time of the exchange of checks *427upon the railroad train. This is a fair' inference from many of the plaintiff’s arguments; but plaintiff does not leave it to inference that this is his view of the contract, for, on the seventeenth page of his brief, he expressly states that the contract was complete at that time and the knowledge which some other employee at some other place may have had of the contents of that trunk can have but little bearing on the contract thus made. The argument that the carrier cannot he deprived of his just compensation by the implied misrepresentation that he has not -been paid it seems to me. is without force, as the plaintiff had received a memorandum of the amount of the charge. In the absence of fraud the defendant could charge no more. Baldwin v. Liverpool & G. W. S. Co., 74 N. Y. 125.

Did not the amount of the charge when this piece of baggage came to Long, the defendant’s agent, who it is claimed had knowledge of the contents of plaintiff’s trunk, put him off his guard and warrant him in assuming that the trunk contained only ordinary baggage and that 'the agent upon the train had been so assured, hence the charge ? Was he to hold the trunk until plaintiff could be communicated with and the contents ascertained and a new bargain mad® ? I think not. I think he had the right to assume that the bargain had been fairly made upon the train, that plaintiff had. disclosed the contents of the trunk and that the charge of forty cents indicated the ordinary contents and the ordinary care required.

If, however, it is conceded that defendant is charged as to this contract, with the knowledge of the agent Long, who did not make the contract but attended to shipping the trunk, there is a very grave question as to whether such knowledge was sufficient to absolve the plaintiff from the charge of fraud or imposition. “ The mere appearance of the trunk or case offered to be checked as one ordinarily in use for carrying merchandise or samples will not itself charge the carrier with knowledge that it does contain merchandise rather than personal baggage.” 6 Cyc. 669.

The carrier may, however, he charged without actual knowledge of the contents of the trunk, but the circumstances must be such as to indicate that the contents of the trunk are *428merchandise. Trimble v. N. Y. C. & H. R. R. R. Co., 162 N. Y 84.

If knowledge of the contents of the trunk was an element to be considered, then it rendered the question of fraud or imposition a question of fact and required its submission to the jury. This necessitates setting aside the verdict, unless plaintiff is right in his contention that the-dofendant is liable in any event for the absolute misfeasance of his servants. This is undoubtedly true in some forms of action; but, as I understand the plaintiff’s complaint, he alleges a cause of action upon contract. If the cause of action as set forth is doubtful or ambiguous, every intendment is in favor of construing it as being in the nature of an action *ex contractu.*Brown v. True, 53 N. Y. 640; Elwood v. Gardner, 45 id. 349; Goodwin v. Griffis, 88 id. 629-638, 639; Lange v. Shile, 111 App. Div. 613, 615; Price v. Parker, 44 Misc. Rep. 682; Rothschild v. Grand T. R. Co., 10 N. Y. Supp. 36.

Of course the action might have been for conversion. McCormick v. P. R. R. Co., 80 N. Y. 363.

Upon a complaint on contract, plaintiff cannot recover on proof of a cause of action *ex delicto.*The recovery must be *“secundum allegata et probata.”*Neudecker v. Kohlberg, 81 N. Y. 296; Butler v. Livermore, 52 Barb. 570, 578; Woolsey v. Trustees of Ellenville, 69 Hun, 489; Salters v. Gerim, 7 Abb. Pr. 193; Southwick v. First National Bank, 84 N. Y. 420.

The'plaintiff does not seek to recover anything for the very small amount of wearing apparel he had in the trunk. If I am correct that when the check was delivered to defendant it had the right to assume that the trunk contained nothing but ordinary baggage, then so far as the jewelry in the trunk was concerned there was no contract as to it, and the defendant had no knowledge that it was in its possession. This being so, I am of the opinion that plaintiff had no cause for action. Gurney v. Grand Trunk R. Co., *supra.*

Verdict set aside and new trial ordered.