Seymour L. Morse for plaintiff.
Benedict Ginsberg for defendant.
instead of money, will you receive it as such? to which the plaintiffs assented, and accepted it. * * * True, the defendant had done an act which would fix a liability upon it for the amount if the plaintiffs had so elected, but it was competent for them to waive the strict performance of this part of the contract. * * * By an unqualified acceptance they gave the carrier to understand that they adopted his act." (Pp. 378-380.) Plaintiff cites the case of
Mogul v. Lavine (
supra), in support of his contention that the defendant is liable. In the cited case, there was no acceptance of the check and no waiver of the requirement that collection be made by the defendant at or before the delivery of the goods to the consignee. In that case the plaintiff, immediately upon the receipt of the check from the defendant, returned it by letter to the defendant. In the case at bar, the court does not find any return of the check nor does it find that the plaintiff accepted the check conditionally. The circumstances in this case are capable of one construction, and that is, that the plaintiff adopted and ratified the act of the defendant carrier, by his unqualified acceptance of the consignee's check. Judgment for defendant on the merits.