
    Moriarty, Meyer and others, v. Harnden’s Express.
    The plaintiffs bought goods of E. and gave directions to ship them by the defendant, an Express Company,—Held, that under such directions, E. had authority, so far at least as defendants were concerned, to make a contract limiting the defendant’s liability.
    A carrier receiving goods for carriage will not be required to examine the authority of the person presenting them, to make a contract limiting his responsibility.
    That the right of a common carrier to limit his liability is no longer subject to discussion.
    Appeal by the defendant from a judgment entered on a verdict, and from an order denying a motion for a new trial.
    The complaint averred the delivery to the defendants, as common carriers, of two boxes of goods, to he carried from Mew York to Selma, Alabama ; that defendants delivered the boxes at Selma, hut “ so negligently conducted themselves in and about the transportation of the goods, and the taking care thereof, that a part thereof—two pieces of silk, one box of hosiery, and box of pins, of the value of three hundred dollars, have been wholly lost.”
    The proof on the part of plaintiff showed that Emanuel & Co., merchants in the city of Mew York, on the order of Meyer & Co., purchased the contents of the boxes in question, and had them packed in Emanuel & Co.’s store. Meyer & Co. ordered Emanuel & Co. to forward the goods-by Hamden’s Express; Emanuel & Co. kept in their office a book of the blank bills of lading used by all the express companies ; they sent for defendants’ wagon, filled up one of the bills of lading, and had it signed by the defendants, and returned to Emanuel & Co. The bill of lading stated that Emanuel & Co. had delivered to defendants two cases, marked M. and E. Meyer & Co., to be forwarded to.Selma, Alabama, and stipulated that the defendants were not to he responsible for any loss or damage arising from the dangers of railroad, steam, or river navigation, leakage, fire, or from any cause whatever, unless the same he proved to have oeeurred from the fraud or gross negligence of the defendants, their agents or servants. The bill of lading further stated, that goods carried were valued under fifty dollars, unless otherwise stated. This hill of lading was read in evidence by plaintiff. The plaintiff gave evidence showing that two pieces of silk were' in the boxes when delivered to the defendants, and that the same were missing when the boxes were received from the defendants in Selma.
    The Judge charged the jury among other things, as follows :
    
      “ It is for you to say with whom the contract was made— whether with Emanuel & Co. or with the plaintiffs. If you conclude that it was made with Emanuel and Co., on the plaintiff’s behalf, then, unless Emanuel & Co. had authority to make such a contract, the plaintiff's are not bound by any such condition in the receipt, in respect to the defendants’ liability only in the event of fraud or gross negligence.”
    The jury returned a verdict for plaintiffs, and judgment was entered against the defendant. The defendant then appealed to the General Term.
    
      Henry A. Cram, (Cram & Fowler), for appellants.
    I. The bill of lading was the "binding contract between the parties. The authority of Emanuel & Co. was immaterial, and it is a proposition without foundation of authority or principle, that any one may make a contract with a carrier, and after performance by the carrier, that the contract may be repudiated, on the ground of its being the act of "an- unauthorized agent. (2.) The direction to send the goods by Ham-den’s Express was an authority to make this very contract.
    II. Carriers may now, by contract, limit their liability in all cases excepting their own fraud. Dorr v. Steam Nav. Co. 1 Kernan, 490; Wells v. Steam Nav. Co., 4 Selden, 381; Wells v. N. Y. C. R. R. Co., 26 Barb. 641.
    HL The right of the carrier to make the contract as to the value clause has been always clear, and was binding in" all cases unless in the case of actual fraud of the carrier.
    
      E. & E. F. Brown, for respondents.
    I. The printed matter following the receipt and agreement to carry the goods, reciting an agreement to limit the common law liability of the defendants, was not binding upon the plaintiffs. (1.) Because not signed or expressly assented to by the plaintiffs or their agents. (2.) , Because if assented to by the plaintiffs’ agents (“ I. Emanuel & Co.,”) they had no authority to make any contract for the plaintiffs with the Express Company limiting their common law liability.
    II. The evidence was sufficient to establish “ gross negligence ” or fraud, or even embezzlement against the defendants. Camden & A. R. R. Co. v. Bauldauf, 16 Penn. 78; Swindler v. Hillard, 2 Richardson (S. C.), 286; Story on Bailm. 529, 574; Clark v. Spencer, 10 Watts, 335.
    III. The defendants, as common carriers, could not exonerate themselves from liability, in case of loss happening through the negligence or fraud of themselves, their agents, or servants, and this they have not attempted to do by their alleged agreement, except to limit the value of the goods below fifty dollars, unless otherwise stated. Sager v. Portsmouth R. R., 81 Maine R., 236.
   By the Court.

Brady, J.

The defendants agreed to carry from this city to Selma, Alabama, two cases of goods marked M. & E. Meyer & Co. At the time the goods were delivered a receipt “ was filled up ” by I. Emanuel & Co. who were acting for the plaintiffs in forwarding the goods, and given to the defendants’ driver who signed it. That receipt was produced and put in evidence by the plaintiffs after they had rested and a motion for nonsuit had been made on the ground that it appeared from the evidence that there was a written contract which the-plaintiffs .had not produced. After its introduction the witness who had- identified it was asked this question, "Was your attention ever called to the printed matter Ox this receipt?” The question was objected to, bnt allowed, and an exception was taken. The witness was the book-keeper of I. Emanuel & Co., and it was wholly immaterial whether his attention had been called to the printed matter or not. The evidence had disclosed the fact that Emanuel & Co. had a receipt book of the defendants’ in their store, from which the receipt in question was adopted by them, and without any application on the part of the defendants. It was filled up and given to the driver of the defendants and signed by him. The witness was also asked, “ What authority had you from Meyer & Co. relative to the shipping of the goods ?” and the question was allowed, although objected to. The answer was, Our directions were to ship the goods by Harnden’s Express; we had no other authority or direction from the plaintiffs in respect to the shipment.” Upon this evidence the presiding Judge charged the jury as follows : “ If you find that I. Emanuel & Co. had no other authority or direction in regard to the goods than merely to purchase and ship them in the ordinary way, then no contract existed between the plaintiffs and defendants limiting the liability which the law imposes upon common carriers in case of non-performance of their agreement to deliver property in a safe condition.” And further, " that unless Emanuel & Co. had authority to make such a contract the plaintiffs are not bound by any such condition in respect to the defendants’ liability in the event of fraud or gross negligence.” This was substantially telling the jury that unless Emanuel & Co. had the power to make the contract contained in the receipt, the defendants were liable. The charge was erroneous. The right of the carrier to limit his liability is no longer subject to discussion. Dorr v. Steam Nav. Co., 1 Hernan, 490; Wells v. Steam Nav. Co., 4 Selden, 3S1; and when a special contract is made the relations of the parties are changed, and the carrier becomes as to that transaction an ordinary bailee and private carrier for hire, Parker, J. in Dorr v. Steam Nav. Co., supra. The directions given by plaintiffs to ship goods by Hamden’s Express, authorized Emanuel & Co., so far at least as the defendants are concerned, to make any contract which the defendants insisted upon. If the agents transcended their power, the innocent party should not suffer. There was nothing in the case to call upon the defendants for an examination or investigation of the authority of Emanuel & Co. . It -was enough that they’ delivered the goods to them and asked for their carriage ; but in this case they did more, they drew the contract and presented it for signature. It would virtually destroy the liability of the express business, which has become a very important part of our commercial system, to hold that when goods are delivered the carrier who chooses to limit his reponsibility should stop to examine the authority of the person presenting the goods to make the contract which he exacts. It would, in this case, in my judgment, be erroneous to sustain the proposition that Emanuel and Co. had not authority to make this contract. They had possession of the goods and delivered them for carriage. The possession was a lawful one, and the person selected to transport them, in accordance with instructions received; not only that, but 'the plaintiffs introduced the contract to sustain their case, and then sought to avoid it by proving instructions in relation to the carriage, by the book-keeper of Emanuel & Co. If the doctrine be tolerated, that in cases similar to this, the contract can be avoided for want of power to make it, the proof on the part of the plaintiff should be ample. I think the rule is not a sound one, and that its annunciation was error. v

The judgment should be reversed.  