#### Arthur L. Braus, Respondent, *v.*The Manhattan Delivery Company, Appellant.

(Supreme Court, Appellate Term, First Department,

December, 1912.)

Carriers — express companies — evidence of loss of package — actions.

Plaintiff, on shipping goods by defendant, an express company, customarily used receipts provided by it containing a clause by which it was agreed that the rate was to be regulated by the value of the property. In an action against the defendant for the loss of a package, where there is no proof that plaintiff ever tendered the receipt back to defendant, or that before the commencement of the action he ever said or did anything in repudia*372tion thereof, and there is no evidence as to how the package was lost, the facts justify the conclusion that plaintiff accepted the receipt as given and that his subsequent silence was a waiver of what occurred at the time of the delivery of the package to defendant’s driver.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, first district, rendered in favor of the plaintiff.

Edward Y. Conwell and Robert E. Palmer, for appellant.

Edward A. Isaacs, for respondent.

Hotchkiss, J.

The plaintiff was a customer of defendant, an express company, which had provided plaintiff with a book of printed blank receipts, which receipts plaintiff had customarily used when shipping goods by defendant. These receipts contained a clause in -substantially the form commonly found in receipts issued by express companies, by which it was agreed that the carriage rate was to be regulated by the value of the property, and was based, in the particular instance, upon a valuation of not exceeding fifty dollars unless a greater value was declared; that the value of the property was not more than fifty dollars, unless a greater value was stated in the receipt, and that the company should not be liable for more than fifty dollars, if no value was stated therein.

- The plaintiff recovered a judgment in the court below for $129 for a shipment made under the following circumstances: The driver of one of defendant’s conveyances came into the plaintiff’s store late in the afternoon while plaintiff’s shipping clerk was occupied in the rear of the store; the package in question was lying on a table with one of the receipts in the book, made out ready for defendant’s signature. As the shipping clerk was approaching the driver, the latter hurriedly signed the receipt, took up the package and was rapidly going out of the door with it when he was hailed by the shipping clerk, who asked him to wait until he -(the clerk) could figure up and give him the value of the package, *373but the driver, continuing on bis way, called out to the shipping clerk “ never mind ”— that he was in a hurry and could not wait.

There is no proof that plaintiff ever tendered the receipt back to the defendant or that before this action was .brought he ever said or did anything in repudiation of the receipt which he thus retained without objection and which he offered in evidence on the trial. There was no evidence to show how the package was lost.

We think these facts justify the conclusion that plaintiff accepted the receipt in the form in which it was given, and that his subsequent silence was a waiver of whatever occurred at the time of delivery and which might have justified his repudiation of the receipt had he chosen to repudiate it. In this view, Schwartz v. Fargo, 145 App. Div. 574, has no application and the case falls within Jonasson v. Weir, 130 id. 528, and Bates v. Weir, 121 id. 275.

Lehman and Page, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.