#### William Freeman, Respondent, *v.*Levi C. Weir, as President, etc., Appellant.

(Supreme Court, Appellate Term,

June, 1905.)

Carrier — Special agreement as to goods sent C. O. D.

A special agreement by a shipper of a package to be sent by express C. O. D., that if the C. O. D. is not paid within thirty days, the express company may return the property and he will pay the transportation charges both ways, contemplates the return *682of the package in good order, and the shipper may refuse to accept it in a damaged condition, though it be offered within the thirty days.

Scott, J., dissented.

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

Guthrie, Cravath & Henderson (Edward E. Stowell, of counsel), for appellant.

Jacob Chebulsky, for respondent.

MacLean, J.

December 22, 1904, the plaintiff delivered to the Adams Express Company, of which the defendant is president, a package to be sent “ C. O. D.” to a person in Philadelphia. Receiving no return, as he testifies, he inquired of the agent and clerks at the local office a couple of times and then was referred to “ the claim man ” at the main office. There he went with his lawyer and was told that it had been delivered, otherwise he would have been notified within three or' four days. It is claimed that a postal-card was sent him from Philadelphia, December twenty-third, with word that the parcel was refused because of the express charges, and each of two persons deposes separately on a commission that he sent the card. If this be *prima facie*evidence of notice it is contradicted by circumstances and by the testimony of the plaintiff who says he opens all his mail and never received the postal-card.

The defendant’s chief reliance, however, is on his- plea of the “ special contract,” in the bill of lading, to wit: “ If any *‘*O. O. D.’ is not paid within thirty days the shipper agrees that the express company may return the property and that he will pay the charges of transportation both ways.” That agreement contemplated that the package be returned in good order. A little before the expiration of the thirty days the package was offered to the shipper who refused to receive it, because, as he says, it was brought back in very damaged condition respecting which he is *683corroborated positivély by two of his employees. Two employees of the company testify positively it was in good condition. Evidence sufficient, if credited, to sustain the judgment was adduced, and so the judgment may stand.

Dttgro, J., concurs.

Judgment affirmed, with costs.

Scott, J.

(dissenting). It seems to me to be quite unimportant whether or not defendant notified plaintiff of the nonacceptance of the goods by the consignee. The crucial fact in the case is that within thirty days of the shipment the defendant tendered back the goods to the plaintiff and he absolutely refused to receive them. There was some evidence that the package or wrapping paper containing the goods was torn and' damaged, but this was no evidence of a total loss. On the contrary the plaintiff’s evidence showed very clearly that the loss was but partial. Under these circumstances the plaintiff was not justified in refusing absolutely to accept the goods, but should have received them and sued for the loss, if any. Brand v. Weir, 27 Misc. Rep. 212, and cases cited.

Judgment should be reversed and new trial granted, with costs to appellant to abide the event.

Judgment affirmed, with costs.