St. Sing v. Am. Ry. Express Co, (No. 337.)

• Decision Date: 26 April 1922
• Docket Number: (No. 337.)
• Citation: 111 S.E. 710
• Court: North Carolina Supreme Court
• Parties: ST. SING et al. v. AMERICAN RY. EXPRESS CO.

111 S.E. 710

ST. SING et al.

v.AMERICAN RY. EXPRESS CO.

(No. 337.)

Supreme Court of North Carolina.

April 26, 1922.

Appeal from Superior Court, Durham County; Daniels, Judge.

Action by William St. Sing and another against the American Railway Express Company. From judgment of nonsuit, plaintiffs except and appeal. No error, and judgment affirmed.

The action is to recover damages for the value of a package, to wit, a bicycle motor attachment, bought in St. Louis, Mo., and shipped with defendant to plaintiffs at Durham, N. C, under a uniform express receipt and contract of carriage, and which was never delivered to plaintiffs, the consignees. At the close of plaintiffs' evidence, on motion, there was judgment of nonsuit, and plaintiffs excepted and appealed.

J. W. Barbee, of Durham, for appellants.

W. B. Guthrie, of Durham, for appellee.

HOKE, J. There were facts in evidence tending to show that in February, 1920, William St. Sing, the father, ordered for his minor son and coplaintiff, Macon St. Sing, from H. R. Geer, St. Louis, Mo., a bicycle motor attachment, sending the price, $40, per post office order; that about the time the article should have been received (seven or eight days) plaintiff made inquiry for the package at the express office in Durham, and, being informed that no such package was in hand, plaintiff commenced a correspondence with the vendor at St. Louis, and also took it up with the Post Office Department, thinking the package might have been sent by parcel post, and finally, in September, 1920, plaintiff procured from Geer & Co. the express receipt showing same had been shipped with defendant as common carrier, under a uniform express receipt, containing, among others, the following stipulation:

"7. Except where the loss, damage or injury complained of is due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, as conditions precedent to recovery claims must be made in writing to the originating or delivering carrier within four months after delivery of the property, or in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed, and 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."

That as soon as plaintiff obtained receipt, it was exhibited to express agents, who informed plaintiff it would be necessary, in order to file an intelligent statement of his claim, that he should have the invoice. This was procured in about three or four weeks longer, and both left with the company's agents at Durham. The package was never received by plaintiffs or either of them, and no formal or written claim for the loss was ever made or filed with the company or its agents other than leaving with them the express receipt and invoice as stated, and which was in October, 1920.

There was further evidence permitting the inference that the shipment had in the usual course been sent to Richmond and disposed of, as for unclaimed goods, and could not now be recovered; the letter of defendant asserting nonliability on the contract of carriage being as follows:

"Durham, N. C, February 11, 1921.

"Mr. Macon St. Sing, 1016 Halloway Street, Durham, N. C.—Dear...