#### Michael E. Howatt, Appellant, *v.*William H. Barrett, as President of the Adams Express Company, Respondent.

(Supreme Court, Appellate Term, First Department,

November, 1912.)

Carriers — action for breach of contract—modification of express receipt.

A shipment of goods by express C. O. D., modified by an indorsement on the express receipt to a shipment without C. O. D., and to a change of consignee, does not relieve the latter from the payment of express charges but only from the payment of the value of the goods.

Where, without a tender of delivery to the consignee, the goods are returned to the shipper conditionally on payment of express charges both ways, which payment is refused, the company in an *157action for breach of its contract of carriage is not entitled to demand payment of the express charges.

The purpose of the Carmack amendment (34 U. S. Stat. at Large, 595, § 7), under which a connecting carrier of goods acts as agent for the initial carrier which is made liable as if it had done the act complained of, was to enable a shipper in case of loss or damage to his goods to have recourse to the initial carrier and leave it to its recourse against' the connecting carrier for whatever damage it might have to pay to the connecting carrier doing the injury, and anything in an express receipt contrary to said amendment renders the receipt invalid.

Where, in an action against an express company for breach of a contract to carry goods, the defense was that the connecting carrier was the only express company at the place to which the goods were first consigned, and that both it and defendant were gratuitous bailees, and that defendant was not liable for the connecting carrier’s error or non-delivery of the goods, a judgment in favor of defendant will be reversed, with direction for the return to plaintiff of the value of the goods.

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

George A. Ferris, for appellant.

Guthrie, Bangs & Van Sinderen (Bobert E. Palmer and Francis Dean, of counsel), for respondent.

Guy, J.

Plaintiff sues to recover damages for breach of contract of carriage.

On March 19, 1910, plaintiff shipped goods valued by him at forty-four dollars and fifty cents, O. O. D. to J. T. Saidy at Excelsior Springs, Missouri, by the defendant the Adams Express Company. On March 25, 1910, he modified the shipment to read *“*Deliver to M. A. Saidy, Denver, Col., without C. O. D.,” which was indorsed on the express receipt. This did not relieve the consignee from the payment of the express charges, but only from payment of the value of the goods. The goods were never delivered or tendered to the consignee, but were returned to the plaintiff conditionally on his paying express charges back and forth, which were de*158manded by defendant and refused by plaintiff. The defendant company, having failed to perform its contract, was not entitled to demand payment of express charges.

The defense was that the Wells Fargo Express Company is the only express company at Excelsior Springs; that both it and the defendant were gratuitous bailees, and defendant was not liable for the connecting carrier’s error or nondelivery, if any.

Under the Carmack amendment (34 U. S. Stat. at Large, 595, § 7) a connecting carrier acts as agent for the initial carrier, which is made liable as if it itself had done the act complained of. The purpose of the Carmack amendment was to enable the shipper in case of a loss or damage to his goods to have recourse to the initial carrier, and leave the initial carrier to its recourse, for whatever damages it might have to pay to the connecting carrier doing the injury. If there is anything in the express receipt contrary to the Carmack amendment, it is invalid. DeWinter & Co. v. Texan Central R. R. Co., 150 App. Div. 612, 616, 617; Atlantic Coast Line R. R. Co. v. Riverside Mills, 219 U. S. 186, 194-197, 199-201, 203-207.

Judgment reversed, with costs, and judgment directed for the plaintiff in the sum of forty-nine dollars and ninety cents.

Seabuby and Bijub, JJ., concur.

Judgment reversed, with costs, and judgment directed for plaintiff.