
    HAILPARN v. JOY S. S. CO. et al.
    (Supreme Court, Appellate Term.
    June 1, 1906.)
    Carriers—Injury to Goods—Release op Liability—Acceptance op Contract.
    The owner oí goods, with a truckman, took them to a carrier; the owner leaving the truckman to deliver them, get a receipt therefor, and deliver it to the owner’s wife. The truckman delivered them, got a hill of lading, naming him as “owner or shipper” and the owner as consignee, and without examination signed in his own name a paper handed him by the carrier’s agent, who knew he was merely a truckman, with the direction that he sign “this release,” which recited that in consideration of the transportation of the goods at “reduced rates,” of which fact there was no other evidence, liability for damages from negligence of the carrier was released. Held, that the release was ineffectual; there being nothing to show it was accepted by the shipper.
    [Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, § 691.]
    
      Appeal from City Court of New York, Trial Term.
    Action by William Hailparn against the Joy Steamship Company and another. From a judgment dismissing the complaint as to the steamship company, plaintiff appeals.
    Reversed, and new trial granted.
    Argued before GILDERSLEEVE, DAVIS, and CLINCH, JJ.
    Henry Kuntz, for appellant.
    Ritch, Woodford, Bovee & Butcher (Frederick C. Tanner, of counsel), for respondent Joy S. S. Co.
   GILDERSLEEVE, J.

The action is to recover for damages to 11 packages of household goods shipped from Boston to New York. The complaint was- dismissed as to both defendants on different grounds. This appeal is only from the judgment dismissing the complaint as to the defendant Joy Steamship Company.

This defendant is a common carrier, and undertook to convey the goods from Boston to New York. The goods were delivered in a greatly damaged condition, but the court below dismissed the complaint on the ground that a release under seal was executed by plaintiff’s agent against any damages occasioned by defendant’s negligence, in consideration of the reduced rate at which the shipment was made. The plaintiff and a truckman named Brown took the goods to defendant’s pier in Boston to have been placed on defendant’s boat for transportation to New York. The plaintiff was in a great hurry, and there were a large number of people ahead of him. He therefore told Brown to deliver the goods to defendant, to get a “receipt” for the same, and to deliver said receipt to plaintiff’s wife. The said Brown did so deliver the goods, and got a bill of lading in return for said goods, in which Brown was named as “owner or shipper” and the plaintiff as consignee. At the same time defendant’s agent handed Brown the release in question and told him to sign it. Brown did so. The release, of course, remained in possession of defendant. Plaintiff sought to show that he in no way authorized Brown to sign said release, but was not allowed to do so. Still the evidence does show that plaintiff merely told Brown to get “the receipt” for the goods, upon delivering them to defendant, and to give such “receipt” to plaintiff’s wife. It may be remarked that, aside from the fact that the release recites that it is given in consideration for transporting the goods at “reduced rates,” there is no evidence whatever that the rates were, in point of fact, in any degree reduced. There is no doubt that a common carrier may limit its liability by contract in consideration of a reduced rate for transportation. Zimmer v. Railroad Co., 137 N. Y. 460, 33 N. E. 642; Kenney v. Ry. Co., 125 N. Y. 422, 26 N. E. 626. Nevertheless such contract must be accepted by the shipper or his agent. The release was signed “M. Brown,” and nothing appears in said release to indicate that Brown acted for anybody but himself. He was never authorized by the plaintiff to sign said release, nor is there anything to indicate that plaintiff in directing Brown to deliver the goods and take a “receipt” therefor, had the remotest anticipation that any such release was io be demanded by the defendant. Brown himself does not appear to have read the release, or had his attention called specifically to its provisions. He merely signed it mechanically at the bidding of defendant’s agent, who says he told him to sign “this release.” Brown- was a mere truckman, as defendant’s agent well knew. It seems to us that the judgment and order appealed from should be.reversed, and a new trial granted, with costs to appellant to abide the event..

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.  