
    Holford v. Adams, and others.
    (Before Oakley, Ch. J., and Emmet, J.)
    November 11;
    December 10, 1853.
    The defendants, an Express Company, received from the agents of the plaintiffs • at Mew Orleans, a package, valued at §40,000, to be transported and delivered to the plaintiff at Mew York. By the terms of the receipt given for the package, the defendants were not to be responsible for any loss or damage not arising from their own fraud or gross negligence, or that of their servants; and • it was proved that there was the same care in the transportation of all articles without regard .to their value. When the package arrived at Mew York, the defendants refused to deliver it to the plaintiff, unless upon the payment of §400, being 1 per cent, upon its estimated value.
    
      Held, that, under these circumstances, there was no reason for enhancing the charge for transportation in proportion to the value of the articles transported, and that the charge made was therefore, prima facie, unreasonable and extravagant.
    
      Held also, that the charge was not justified by usage, the usage proved not being general, but that of the defendants alone, and there being no proof that it was known to the plaintiff or his agents.
    Appeal by plaintiff from a judgment, at special term, upon exceptions taken at the trial.
    The action was for the delivery of personal property, with damages for its detention.
    
      The complaint charged that Robb & Co., agents of the plaintiff at New Orleans, on the 11th of December, 1851, delivered to the defendants, transacting business under the name of Adams & Co., a package, containing Arkansas bonds of $1,000 each, with coupons attached, belonging to the plaintiff? to be transported by the defendants, by steamer, from New Orleans to the city of New York, and there to be delivered to the plaintiff for a reasonable consideration, to be paid by him to the defendants. That, when the package was so delivered, the agent of the defendants, at New Orleans, signed and delivered a receipt therefor, by which it was stipulated that the defendants should not be responsible for any loss or damage arising from the dangers of the sea, steam or river navigation, or from any cause whatever, unless the same should be proved to have occurred from the fraud or gross negligence of the defendants, their servants, or agents.
    The complaint then averred that the defendants had transported the package to New York; that he, the plaintiff, had tendered to them a reasonable sum as a compensation for transporting it, and had demanded its delivery ; but that they had refused to deliver and still retained it: and then demanded judgment in the usual form.
    The defendants, in their answer, denied that the package containing the bonds was delivered to them, to be transported to New York, and there delivered to the plaintiff for & reasonable consideration. They denied that any receipt was signed or given, as alleged in the complaint; and that the plaintiff had offered to pay to them a reasonable sum as a compensation for transporting the package.
    They averred that when the package was delivered to them at New Orleans, Robb & Co. expressly stated that the bonds which it contained were of the value of $40,000 ; and that it was then expressly understood and agreed between them and Robb & Co., that, in consideration of their taking charge of, transporting, and delivering the package, the plaintiff would pay to them, upon its delivery to him in New York, one per cent, upon the value of the bonds, as represented and fixed. They then insisted that they were entitled to retain the possession of the bonds until this sum, amounting to $400, should be paid, which they averred was no more than a reasonable and usual compensation for the transportation of similar packages. The reply took issue upon the new allegations in the answer.
    The cause was tried before Paute, J., and a jury, in December, 1852. TJpon the trial, the counsel for the plaintiff read the following stipulation.
    “ Whereas this suit has been commenced by the plaintiff to recover the possession of certain bonds and coupons in the complaint described, and damages for the detention thereof, and the defendants’ claiming a lien on said bonds and coupons, and a right to detain the same, for their labor and services in the transportation thereof, from New Orleans to the city of New York.
    “ And whereas the defendants have surrendered up to the plaintiff the possession of said bonds and coupons under the agreement hereinafter set forth.
    “Now it is stipulated and agreed between the attorneys for the respective parties, that, upon the trial of this action, the jury shall assess the amount to which the defendants are entitled for such labour and service; and that in case the amount so assessed shall exceed the amount heretofore tendered by the plaintiff, namely, twenty dollars, the defendants shall be entitled to judgment with costs, and the plaintiff shall, upon demand, pay to the defendants such judgment, and the costs and extra allowance of this suit, or return such bonds and coupons to the defendants, to be held by them as a security for the payment thereof, in the same manner, and with the same right of lien, as though they had never parted with the possession thereof.
    “ Dated, New York, April 3d, 1852.
    “ Tucker & Cbapo,
    “ At't’ys Pltff.
    “E. H. Oweit,
    “ Defts. Att’y.”
    The counsel for the plaintiff then rested his case.
    It was then admitted by the counsel for the defendants, that a receipt for the package had been given by their agent at New Orleans, which corresponded in its terms with the statement in the complaint.
    The counsel for the plaintiff then admitted, that on the outside of the envelope which contained the bonds was endorsed the words and figures “ James Holford, Esq., 49 "William street, New York—value $40,000.”
    The counsel for the defendants then called
    
      A. L. Simson, who, being sworn, testified as follows: I am an express man in Adams & Co.’s office; I have been there about three years; I am in the New Orleans department; I have • charge of it; the business of Adams & Co. consists in transporting parcels and freight to most parts of the country, and also to California; they also transport valuable packages, which compensates for the small amounts they receive for the carriage of articles of small intrinsic value; in the transportation of parcels, the valuable parcels compensate for transporting less valuable packages, and enable Adams & Co. to transport the less valuable packages cheaper than they otherwise would; we have agencies at the principal points of the Union.
    Being asked by the defendants’ counsel, what was the usual compensation of Adams & Co., for receiving at New Orleans, and for transporting and delivering in New York packages of value; the question was objected to by the plaintiff’s counsel, which objection was overruled by the judge; to which decision of the judge the plaintiff’s counsel excepted. The witness answered one per cent, on the value of the package.
    The counsel for the defendants then asked the witness:
    What is the usual charge of other express men and carriers, for transporting packages of value from New Orleans to New York?
    To which question the plaintiff’s counsel objected, which objection was overruled; to which decision of the judge the plaintiff’s counsel objected.
    The witness then answered: One per cent, on the value, that is the usual charge of Adams & Co.; it is my impression that the steam-ships charged at the same rate; it is invariably our customary charge; we make special bargains with people sometimes.
    Being cross-examined by the plaintiff’s counsel, the witness testified:
    There are, I think, about sixty Express offices in the city of New York; this number includes all sorts ; the local expresses as well as the large ones ; I never was employed in the express business before I engaged with Adams & Co.; I have never known Adams & Co. to transport Arkansas bonds before; I don’t remember their transporting any bonds except some Texas bonds; I can’t say whether they did or not; I don’t remember any other bonds than the Texas and Arkansas bonds.
    Being asked by plaintiff’s counsel what articles of value the defendants have forwarded, he says:
    I cannot name any article of value particularly; I cannot name a single parcel; I remember a parcel of gold dust worth $1,000.
    Being again examined in the direct, the witness said-:
    Packages, when brought to us to be forwarded, are usually sealed; we rely as to the value of the package on the declaration of the party employing us; sometimes he don’t declare its value; we then let it go as a common parcel; the charge on these bonds as a common parcel would have been $1.50 ; there is no difference between parcels of valuable goods and common articles in the care we take of them; we charge one per cent, on the value over a certain amount; I remember the bill of this parcel; when this package was received it was sealed; we always ask as to the contents.
    Being again cross-examined, the witness testified:
    We did not insure this parcel; I remember forwarding gold dust; they sometimes transport goods for jewellers, and we generally make a bargain with them as to compensation.
    In answer to a question of the judge, the witness said, the receipt produced is in the common form of the receipts we give.
    In answer to a question from one of the jury, the witness said, I do not remember that we ever carried anything for Robb or Holford except this one package.
    The defendants’ counsel then called
    
      
      WilliO/m McGill, who, being sworn, testified: I am an express man in the employ of Adams & Co.; have been with them twelve months last Hay; they are at 59 Broadway; I am employed in the California department, in the general department. Being asked, what is the usual rate of charge of Adams & Co. for valuable articles from New Orleans to New York, the plaintiff’s counsel objected to the question, which objection was overruled by the court, to which decision the plaintiff’s counsel excepted. The witness then answered, one per cent.
    Being cross-examined by the plaintiff’s counsel, the witness testified:
    That he had never been in the express business excepting in the employ of the defendants.
    The plaintiff’s counsel then offered to show that the bonds, to recover which this action is brought, were actually bought by the plaintiff in December, 1851, for $26,000.
    To which offer the defendants’ counsel objected, which objection was sustained by the court, to which decision the plaintiff’s counsel excepted.
    The cause was then summed up by the counsel for defendants and plaintiff.
    Whereupon the judge charged the jury, That, if they believed from the evidence that the customary charge by Express offices was one per cent, on valuable articles from New Orleans to New York, they should find for the defendant to that amount on the value of the package, as the same was marked on the package, and declared to the agent in New Orleans when the receipt was taken. That, with regard to the value, the sum of $40,000, declared to the agent in New Orleans, and marked on the package, and inserted in the receipt, was to be taken as the value. "
    That, if the jury should think that the $20, tendered by the plaintiff, was, under the evidence, enough for bringing this package, they would find for the plaintiff.
    If not, they would find for defendants what they thought a proper compensation.
    To this charge of the judge, ana to each and every part thereof, the counsel for the plaintiff excepted.
    
      Whereupon, the jury found a verdict of $425 for the defendants.
    
      T. Tucker, for the plaintiff,
    now insisted, that the judgment entered upon the verdict ought to be reversed, the verdict set aside, and a new trial ordered, and rested his argument upon the following points and authorities.
    I. The plaintiff had a right to the possession of the bonds in question, upon tendering to the defendants the sum of $20. 1. The evidence does not present any facts, from which the plaintiff can claim compensation for more than a common parcel. 2. It appears, from the receipt given by the defendants, that they were not responsible for any risk, excepting for their own fraud. 3. It also appears from defendants’ receipt, that their charge, in this instance, was not for insurance. 4. It was also proved, that the defendants bestowed no more care on this than they would have given a common parcel. 5. The bonds were not valuable articles, but mere evidences of debt, the destruction of which would not have involved a loss of their nominal amount.
    II. There was no commercial or other usage which justified the plaintiff in charging, or obliged the defendant to pay $400 for the transportation of the package in question. 1. A usage, like that claimed by the defendant, must be so well settled and of so long continuance, as to raise a fair presumption that it was known to both contracting parties, and that their contract was made in reference to it (Eager v. Atlas Insurance Co., 14 Pick. 143; Rayney v. Vernon, 9 Carrington & P.). It must be so uniform and universal, that every one in the trade must be taken to know it (Wood v. Wood, 1 Carr & Payne, 59; 3 Phil. Ev., Cowen & Hill’s Notes, 1422; Story on Contracts, sec. 650, p. 5150, 2d Ed.). Neither of these requisites is supplied by the defendants’ testimony. 2. The testimony of the defendants’ witnesses was not competent to establish the existence of a usage. The witnesses, two in number, were in the defendants’ employ, and had never had any other experience in the Express business. Their experience in the Express business did not exceed one year; and their knowledge as to transportation of bonds, is confined to one instance. • Evidence of a few instances is not sufficient to establish a usage (3 Chitty Com. Law, 45 ; 1 Marsh, 186). Usage must be proved by witnesses, who have had frequent and actual experience of the usage (2 Green’s Ev. 208).
    III. The defendants’ customary charge for transporting packages was not binding upon the plaintiff, it being in evidence that neither he nor his agent had had any prior dealings with defendants, and there being no evidence that the plaintiff knew, or had notice, that there was any customary charge. “ For whatever may have been the usage, it can have no effect on a contract unless adopted by the parties” (Eager v. Atlas Ins. Co., 14 Pick. 143; Snowden v. Warner, 3 Rawle, p. 106). The usages of individuals cannot affect these contracts, unless it appear that the usage was known to the parties with whom they contracted (Loring v. Gurney, 5 Pick. 16; Garay v. Lloyd, 3 Barr. & Cr. 793; Laurence v. Stonington Bank, 6 Cowen R. 521; Rusforth v. Hadfield, 7 East. 225; Kinkman v. Shadcross, 6 T. R. 4; 2 Phill. on Ev., p. 37; Lewis v. Marshall, 13 Lawson (N.S); Duer on Jus. vol. i., pp. 179,182, 193, 254, in Notes x. to xiii.; Winstroop v. Union Ins. Co., 2 Wash. C. C. R. 16; Astor v. Union Ins. Co., 7 Cowen, 202; Syces v. Bridge, 2 Doug. 527). There must be a general usage, or universal custom, brought home to the knowledge of the party defendant; or it must be the special course or habit of dealing with one of the parties, recognised and assented to by the other (Story on Contr., sec. 14; Wood v. Hickock & Harris, 2 Wend. 501; Child v. Sun Mutual Ins. Co.
    
    IV. The testimony of A. L. Stinson and W. McGill in relation to the usual rate of charge for valuable articles, was irrelevant, and ought to have been excluded.
    V. The judge erred in his charge to the jury, because, 1. If there was a customary charge of one per cent, on valuable articles by the Express office, the plaintiff had no knowledge or notice of it, implied or direct, and is not bound by it. 2. If such a charge were proper for valuable articles, it could not be applied, to the transportation of Arkansas bonds, these having no intrinsic value, and being evidences of value merely. The plaintiff’s right to recover the amount specified in the bonds would still remain, although the bonds were lost or destroyed. The plaintiff could not have recovered the stated or nominal value of such' bonds of the defendants, under any circumstances. Such bonds, therefore, are not valuable articles upon which the defendants can charge a per centage. 3. The plaintiff was not excluded from proving the actual value of said bonds by the amount stated in the receipt; there being no evidence of the manner, or by whom such statement was made, or that the plaintiff or his agent ever assented to it. 4. There was no evidence that any declaration whatever was made in New Orleans, by the plaintiff’s agent.
    
      G. F. Betts, for the defendants, contra.
    
    I. The charge of the judge was correct, in leaving it to the jury, to determine what was the proper compensation (Chitty on Contracts, p. 547; Chapman v. De Tastel, 2 Stark. 295; Bryan v. Flight, 5 Mees. & W. 114).
    H. It was correctly submitted to the jury that if, from the evidence, they believed that the customary charge by express offices was one per cent, on valuable articles, from New Orleans to New York, they should find for the defendant to that amount (Hinton v. Locke, 5 Hill, 437; Vail v. Rice, 1 Seld. 155, 158.)
    III. The evidence as to the customary charge of Adams & Co. was competent: 1. To show what was a reasonable or proper compensation ; that they only asked from the defendants what they asked from all their other customers. 2. It was not offered to prove a local usage of that house, nor was it so submitted to the jury by the court. 3. A general usage having been proved, this evidence could do no harm, being included in the other.
    IV. The sum of $40,000, declared to the agent of Adams & Co., at New Orleans," by Robb & Co., marked on the trackages, and inserted in the receipt, was to be taken as the Robb & Co. were plaintiff’s agents (Letter from Tucker & 'Xys Crapo). And their declaration and contract are binding on. J the plaintiff (Story, Agency, § 135). 2. This was me fiontraSí ’iiQOL'l between consignor and carrier (Endorsement on|eng^g>e^ j ' 
      Smith v. James, 7 Cowen, 328; Wolfe v. Myers, 3 Sand. 7-13).
    IV. If the' bonds had been actually purchased by plaintiff for $26,000, that was not evidence against the defendants. 1. It was res inter alios acta. 2. The plaintiffs were estopped, by their admissions and contract, from showing the value to have been other than $40,000 (Truscott v. Denis, 4 Barb. 498; Welland Canal Co. v. Hathaway, 8 Wend. 483).
   By the Court. Oakley, Ch. J.

As no proof was given on the part of the defendants of the express agreement set up in their answer, they were entitled to demand no more than a reasonable compensation for the service which they performed. By the receipt which they gave for the package, they were exempt from the usual liability of common carriers as insurers. They were not responsible for any loss or damage, arising from any other cause than the fraud or gross negligence of themselves, their agents, or servants; and their witnesses proved, that the same care and diligence were bestowed in the transportation of all articles and packages intrusted to their charge, without reference to their value. It is not perceived, therefore, that there was any reason for enhancing the charge for transportation in proportion to the value of the articles transported, and, consequently, the charge which the defendants made, which even exceeds the usual rate of insurance from New Orleans to New York, was apparently unreasonable and extravagant.

We are not, however, to be understood as saying, that the charge made, unreasonable as it seems, may not be sanctioned by usage ; but, it is certain, no usage could justify the charge, unless its character were proved to be such, as to warrant the presumption that it was known to both parties, and that their contract was made in reference to its existence; in other words, that it was known to Robb & Co., the agents of the plaintiff, when they delivered the package to the defendants, and that, by their silence at that time, they consented to be bound by it.

Had it been proved that there was a general, uniform, and notorious usage, justifying the charge made, by the defendants, the law would have imputed to the plaintiff and his agents a knowledge of its existence, but there was no pretence for saying that any such evidence was given. If any usage was proved, it was that of the defendants alone. It was special and particular, not general; and such being its character, we deem it needless to cite authorities to show that, to render it binding on the plaintiff, his or his agent’s actual knowledge of its existence and terms, was necessary to be proved. The evidence, even, of the existence of this limited usage was slight and unsatisfactory ; and there was none whatever from which a jury could be warranted to infer, that its existence was known to the plaintiff or to Robb & Co.

The judge, however, upon the trial, charged the jury, that if they believed from the evidence, that the customary charge by Express offices was one per cent, on valuable articles from New Orleans to New York, they should find for the defendants to that amount, on the value of the package. We think that this charge was erroneous, and that, upon the evidence before the court, the question of usage ought not to have been submitted to the jury at all. We have, however, no right to say that it was not upon this evidence that their verdict was founded, and it must therefore be set aside.

The judgment set aside, and a new trial ordered ; costs to abide the event.  