Mccarthy v. Barber Steamship Lines

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 20410 December 10, 1923 JAMES J. McCARTHY, plaintiff-appellee, vs. BARBER STEAMSHIP LINES, INC., defendant-appellant. J.A. Wolfson for appellant. Charles C. De Selms for appellee.

STATEMENT Plaintiff is a resident of the City of Manila, and the defendant is a corporation organized under the laws of the State of New York, and duly licensed to do business in the Philippine Islands, with its principal office in the City of Manila, where it is represented by the Pacific Steamship Company, another corporation organized under the laws of the State of Washington, and duly authorized to transact business here. The steamship "West Mahomet" is a vessel belonging to, and operated by, the Barber Steamship Lines, Inc., which is engaged in the transportation of freight as a common carrier between New York City and Manila.

The complaint then alleges hat on the first day of July, 1920, the defendant entered into a contract with the American Undergarment Corporation of New York City to transport from New York to Manila 22 cases of cotton piece goods and 3 cases of perforating paper, which it received from the Undergarment Corporation in New York in good order and for which it issued its bill of lading, promising to deliver the same to the Undergarment Corporation at Manila; that of the 22 cases of cotton piece goods delivered to the defendant, only 16 were delivered to, and received by, the Undergarment Corporation in Manila, and that the value of the undelivered six cases was P7,443.64; that among the 16 cases which were delivered, one of them contained 2,926 ½ yards of nainsook, of which only 2,352 ½ yards were delivered, making a shortage of 574 yards of the value of $223.86, or a total value on account of shortage of all the goods of the sum of $7,667.50; that the value set forth in paragraphs 3 and 4 of the complaint are the net invoice values of the goods, plus freight and insurance; that the goods were insured in the Union Insurance Company of Canton, and that upon claim of shortage being made, the Insurance Company paid the Undergarment Corporation the full value of the shortage; that for the value the Insurance Company sold and assigned its claim against the defendant to the plaintiff, who became and is now subrogated to all the rights of the Insurance Company; that the defendant was duly notified of the assignment to the plaintiff, who made a demand for the $7,677.50; "that the defendant has paid on this account the sum of $218.59, U.S. currency, only."

Wherefore, plaintiff prays for judgment against the defendant for the balance, with interest and costs. After the overruling of the defendant's motion and demurrer, to which an exception was duly taken, the defendant made a general and specific denial of all the material matters in the complaint, and, as a special defense, alleges that about April 11, 1921, the defendant paid to the American Undergarment Corporation the sum of $218.59, as a full, final and complete settlement of any and all claims arising from, and pertaining to, the alleged shortage, and, therefore, there is nothing due plaintiff. The case was tried upon such issues, and judgment rendered in favor of the plaintiff for $7,448.91, with interest and costs, to which the defendant duly excepted and filed a motion for a new trial, which was overruled, and it then appealed, contending that the lower court erred in refusing to sustain defendant's special defense, in finding that "the consignee presented its claim in due time and form,"

and that part only of the claim was paid, in finding that the Insurance Company assigned all of its rights to plaintiff, in overruling defendant's motion for a nonsuit, in the admission of certain evidence, and in rendering judgment for the plaintiff and in not rendering judgment for the defendant, and in denying its motion for a new trial.

JOHNS,J.: It is conceded that on November 5, 1920, the American Undergarment Corporation wrote the following letter to the "Admiral Line:" We received shipment of cotton textile via the S.S. West Mahomet six cases of which were short landed and one landed in bad order. The value of merchandise lost en route is P15,335 as per enclosed invoice.

We hereby make claim against you for P437.18 the proportionate share for which you are liable according to clause (1) of the attached bill of lading. Kindly acknowledge receipt of this claim and documents for the same and awaiting your prompt settlement, we remain. In which it enclosed its claim, as follows: Claim No. 667.

Steamer West Mahomet Arrived Sept. 26, 1920. Voyage No. 2 Ex S. S. West Mahomet Cases short landed: 1259 - Flesh Nainsook, yds.

at $0.44 ................ $ 1,339.25 1256 - 2 ½ Nainsook, yds. at $0.39 ....................

1,143.29 1243 - 2 ½ Nainsook, yds. at $0.39 .................... 1,178.77 25015 - 2 ½ Nainsook, yds.

at $0.42 3/4 .............. 1,286.44 25016- 2 ½ Nainsook, yds. at $0.42 3/4 ..............

1,296.93 1246 -2 ½ Nainsook, yds. at $0.39 ...................... 1,198.96