Mellon v. Weiss
| Decision Date | 12 April 1926 |
| Docket Number | No. 223,223 |
| Parties | MELLON, Agent, etc., v. WEISS |
| Court | U.S. Supreme Court |
Mr. Arthur W. Blackman, of Boston, Mass., for petitioner.
Mr. John W. Keith, of Boston, Mass., for respondent.
In November, 1918, while the New York, New Haven & Hartford Railroad was under federal control, a bale of rags was received for shipment to Louis Cutler, the owner. The reasonable time for delivery expired in December, 1918. The rags were never delivered. Cutler assigned his claim for damages to Nominsky. In May, 1919, the latter commenced this action thereon in a state court of Massachusetts. Because he named the railroad company as sole defendant, the action was dismissed by the trial court. In June, 1921, that judgment was affirmed by the Supreme Judicial Court. Nominsky v. New York, New Haven & Hartford R. R. Co., 132 N. E. 30, 239 Mass. 254. See Missouri Pacific R. R. Co. v. Ault, 41 S. Ct. 593, 256 U. S. 554, 65 L. Ed. 1087. In January, 1922, the writ and declaration were, by leave of the trial court, amended under section 206(a), Transportation Act 1920, c. 91, 41 Stat. 456, 461 (Comp. St. Ann. Supp. 1923, § 10071 1/4 cc), by substituting as defendant Davis, Agent and Director General. The summons was immediately served upon him. Later Nominsky died. Weiss, his administrator, was substituted as plaintiff.
Davis, appearing specially to object to the jurisdiction of the court over him, asked that the suit be dismissed. Without waiving that objection, he asked for judgment upon the following among other grounds: The shipment had been made on an order bill of lading which provided that:
'Suits for loss, damage, or delay shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed.'
Davis claimed that, although the substitution of him as defendant was made within two years from the termination of federal control, the action was barred by the bill of lading, because the substitution was not made until after two years and one day from the lapse of the reasonable time for delivery. The objection was overruled by the trial court, and it entered judgment for the plaintiff. The appellate division ordered judgment for the defendant. The Supreme Judicial Court reversed that order and directed the trial court to...
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