
    Joseph Jonasson, Respondent, v. Levi C. Weir, as President of the Adams Express Company, Appellant.
    First Department,
    February 11, 1909.
    Carrier—express receipt limiting liability — when shipper bound thereby — evidence — varying writing by parol — erroneous charge.
    A carrier’s receipt for goods shipped stating that in consideration of the rate charged, which is regulated by the value of the property and is based on a valuation not exceeding fifty dollars unless a greater value is declared, the carrier shall not be liable in any event for more than the value stated, nor for more than fifty dollars if no value is stated, is binding upon the shipper if accepted by him. Where the receipt states no value the shipper cannot recover over fifty dollars on the carrier’s failure to deliver, in the absence of proof of gross negligence or willful wrongdoing. "
    Where the shipper puts such receipt in evidence to sustain his case, he is bound by all its terms, for he cannot claim the benefit of the contract and at the same ! time repudiate part ojf it.
    
      Parol evidence of the value of the goods, or of conversations between the shipper and the carrier’s agent is inadmissible to vary the written contract, especially where the shipper filled out the receipt and failed to mention any value.
    In such action it is error to charge that the jury may determine whether the plaintiff proved some affirmative act of wrongdoing by the defendant, when there is no evidence whatever upon which the finding could be based.
    Appeal by the defendant, Levi 0. Weir, as president, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Kenneth B. Halstead, for the appellant.
    
      I. Gainsburg, for the respondent.
   Scott, J.:

This appeal presents the familiar case of an attempt of a shipper to recover the full value of goods delivered to an express company and lost by it, where the contract of shipment contains a clause limiting liability unless the value is stated in the express receipt, and no value is so expressed. There is no dispute that on November 15 and 19, 1906, the plaintiff delivered to a driver of defendant eleven packages, properly packed and addressed, of the aggregate value of $1,479.63, and that none of these packages were delivered or tendered to or received by the consignees to whom they were addressed. There was no evidence of gross negligence or willful wrongdoing on the part of defendant, nor indeed any evidence as to how or why the packages were lost.

The defendant conceded its liability, questioning only the amount. The express receipts which constitute the contract of shipment, and were introduced in evidence by the plaintiff, were contained in a book of similar receipts kept by plaintiff, whose clerk filled them out, presenting them to defendant’s driver for signature, retaining them after they were signed. Each of these receipts was upon an identical printed form, upon which was legibly and conspicuously printed the following clause: “ In consideration of the rate charged for carrying said property, which is regulated by the value thereof and is based upon a valuation of not exceeding fifty dollars, unless a greater value is declared, the shipper agrees that the value of said property is not more than fifty dollars, unless a greater value is stated herein, and that the Company shall not be liable in any event for more than the value so stated, nor for more than fifty dollars if no value is stated herein.” It is well established and perfectly clear that the plaintiff, by accepting this receipt as evidence of the defendant’s obligation and liability gave his assent to it. and its terms and conditions, and it thereby became operative and effectual as the contract between the parties (Belger v. Dinsmore, 51 N. Y. 166), and the plaintiff, having introduced the contract as part of his case and relied upon- it to sustain a recovery, is bound by its terms, and cannot claim the benefit of the contract and at the same time repudiate a part of its terms. (Springer v. Westcott, 78 Hun, 365; Bates v. Weir, 121 App. Div. 275.) Parol evidence as to the value of the goods, or as to conversation between plaintiff’s clerk and defendant’s driver was inadmissible to vary the written contract: By the terms of the contract the defendant’s liability was limited unless a greater value than fifty dollars was stated in the receipt, and if not embodied in the receipt it is wholly immaterial whether or not it was stated orally to the driver, especially as the plaintiff had himself filled- out the receipt to suit himself and had omitted to mention any value. It was, therefore, error to so submit the case as to allow a greater recovery than that provided for in the contract. The defendant by numerous objections and exceptions raised the question. It was also error to charge at the plaintiff’s request that “it is for the jury to determine upon all the evidence as to whether the plaintiff proved some affirmative act of wrongdoing upon the part of the defendant with reference to the loss of this merchandise.” , There was no evidence whatever upon which such a finding could be predicated, and the charge amounted to an intimation to the jury that they might make a finding upon a material point without evidence- to sustain it.

The judgment must be reversed and a new trial granted, with costs to the appellant, unless the plaintiff shall stipulate to reduce the recovery to $394.80, with interest from November 15, 1906, to February 27, 1907, in which case the judgment as so modified will be affirmed, without costs.

Patterson, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event, unless plaintiff stipulates to reduce recovery as stated in opinion, in which event judgment as so modified affirmed, without costs. Settle order on notice.  