
    James M. Ricketts and Lewis M. Ricketts vs. The Baltimore and Ohio Railroad Company.
    The defendant was a common carrier, owning and operating a railroad extending from Baltimore (Md.) to Parkersburg, (W. Va.) on the Ohio River, but not owning any railroad terminating either in the city of New York, or at Maysville, (Ky.) On the 1st of Sept. 1866, one of the plaintiffs called at the defendant’s freight office in New York, .and stated to the freight agent that he was desirous of sending certain merchandize to his firm at Maysville, and inquired at what rate the defendant would carry the same. The agent mentioned the rate, and instructed the plaintiff how to mark, and where to deliver, the freight. The plaintiff did .not accept the proposition, at the time, or agree to ship any goods; but directed B. & Co., of whom he had purchased certain goods, to mark the same in the manner specified by the freight agent, and to send the same to the freight depot he had named. On the 19th of Sept. B. & Co. delivered such goods at the depot, marked as directed, and addressed to the plaintiffs at Maysville.
    
      Held, 1. That the conversation between the plaintiff and the freight agent did not amount to an agreement by the former to ship any goods; and that .the sending of the goods to the place designated, marked as directed, 18 days afterwards, could not be said to be an acceptance, by the plaintiffs, of what was but an offer, or proposition, on the part of the defendant.
    2. That the contract, whatever it was, was made when the plaintiffs, on the 19th of Sept., through B. & Co., shipped the goods in question and took a receipt therefor.
    3. That the contract between the parties was contained in the receipt then given.
    And, it being by the express terms of such receipt, agreed that that company should alone be held answerable for the goods in whose actual custody they
    • should be at the happening of loss; Meld, that for a loss occurring after the delivery thereof by the defendant at the end of its road, at Parkersburg, to other carriers, for transportation by steamboat from that place to Mays-ville, the defendant was not liable.
    APPEAL, by the plaintiffs, .from a judgment entered upon the report of a referee.
    The action was commenced to recover of the defendants, as common carriers, the value of a lost case of merchandise, owned by the plaintiffs, and which the defendants undertook to carry from the city of New York to Maysville, Kentucky, at the rate of $1.51 per hundred pounds.
    The answer puts in issue all the material allegations of the complaint, except those contained in the “ second ” subdivision thereof, viz., that the defendants are a Maryland corporation, having an office in the city of New'York, and that, at the time of the .transaction in question, they were, and now are, .common carriers of goods for hire. It also contains an averment that at the times mentioned in the complaint, the defendants were not the owners of any railroad whose terminus was either in the city of New York, or Maysville, but owned and operated a railroad extending from Baltimore, Maryland, to Parkersburg, West Virginia, on the Ohio river; and that certain merchandise, supposed to be that mentioned in the complaint, was carried by them over their railroad from Baltimore to Parkersburg, and was there delivered by them on board the steamboat St. Charles, bound down the Ohio river, the proprietors of said boat being common carriers between Parkersburg and Maysville.
    Upon the trial before the referee, it appeared in evidence, by a stipulation as to the facts, entered into between the parties, that on the first day of September, 1866, Lewis M. Picketts, one of the plaintiffs, informed the defendants’ freight agent, at their office in New York, that he was desirous of sending certain merchandise to the plaintiffs, at Maysville, and inquired at what rate the defendants would carry the same. The said freight agent replied, “ at the rate of $1.51 per hundred pounds,” and instructed the plaintiff' to have the same marked, “ B. & 0. Express, Piver,” and to deliver the same at the office and freight depot of the Camden and Amboy Pailroad Company, Pier Po. 1, Porth Piver, in the city of Pew York. The said Lewis M. Picketts thereupon instructed the firm of George Bliss & Co., of whom he had purchased, for account of the plaintiffs, the merchandise mentioned in the complaint, to mark such merchandise “B. & 0. Express, Piver,” and to send the same to the freight depot of the Camden and Amboy Pailroad, Pier Po. 1, Porth Piver, in the city of New York. On the 19th September, 1866, George Bliss & Co. caused the said merchandise (the same being contained in one bale and one case) to be delivered by their carman at the freight depot of the Camden and Amboy Pailroad Company, Pier Po. 1, Porth Piver, the same being duly packed and marked in accordance with the defendants’ instructions, as aforesaid, and addressed to the plaintiffs, at Maysville, Kentucky. Upon delivery thereof the said carman took from the person who received such merchandise, and carried back to said firm of George Bliss & Co., a bill of lading, or receipt, by which, among other things, it agreed that, “ in case of any loss, detriment or damage done to, or sustained by, any of the property herein receipted for, whereby any legal liability, or responsibility, shall, or may, be incurred, that company shall alone be held answerable therefor, in whose actual custody the same may be at the time of the happening of such loss, detriment, or damage.” It further appeared in evidence, on the part of the plaintiffs, that the merchandise contained in the bale, so shipped as aforesaid, was duly .received by the plaintiffs, but the case and its contents were never delivered to them; that the cost at New York, of the merchandise contained in the case, was $590.73, and that its market value at Maysville was at least twenty-five per cent greater, that is to say, was $738.41. It further appeared, that the defendants were not the proprietors of any railroad whose terminus is either in New York, or at Maysville, but own and operate a railroad extending from Baltimore, in the State of Maryland, to Parkersburg, in the State of West Virginia, on the Ohio river, and that the defendants having carried the said merchandise safely to Parkersburg aforesaid, there delivered the same on board the steamboat St. Charles, bound down the Ohio river, and to Maysville, Kentucky, the proprietors of said steamboat being engaged in the transportation of freight as common carriers, between Parkersburg and Maysville, aforesaid.
    The plaintiffs having rested, defendants’ counsel offered in evidence a printed form, in blank, of bills of lading in use by. the defendants during the year 1866. The counsel for the plaintiffs objected to its admission, on the ground that such evidence was immaterial and irrelevant, and that no knowledge on the part of the plaintiffs, that such bills of lading were in use by the defendants at that time, had been or could be shown. The referee overruled the objection, and admitted the bill, and the counsel for the plaintiffs excepted.
    
      Counsel for the defendants then read the same in evidence. Under the following heading, viz: “ Baltimore and Ohio Railroad. Freight and Ticket office, cor. Broadway and Barclay street, above the Astor House, New York. C. W. Perveil, Agent.” Such blank form purports to acknowledge the receipt at New York, of merchandise (as therein designated) “ to be transported by Camden & Amboy and P. W. & B. R. R., to Baltimore, and thence by the Baltimore and Ohio, and connecting railroads, to Wheeling, or Parkersburg, and thence- by way of-to -there to be delivered to -, or assigns.” It then recites that, “ whereas, in their transit from Baltimore to their said place of ultimate destination, the packages aforesaid must pass through the -custody of several carriers, it is understood, as a part of the consideration on which the said packages are received, that the exceptions from liability, made by such carriers respectively, shall operate, in the carriage by them respectivély of said packages, as though herein inserted at length.” * * * And contains a further stipulation, “ that for all loss and damage occurring in the transit of said packages, the legal remedy shall be against the particular carrier only, in whose custody the said packages may actually be at the time of the happening thereof—it being understood that the said Baltimore and Ohio Railroad Company, in re-' ceiving the said packages to be forwarded as aforesaid, assumes no other responsibility for their safety or safe carriage, than .may be incurred on its own road; and it is expressly confined to the roads and stations of the Baltimore and Ohio, and North Western Virginia Railroad Companies.”
    The referee found and reported the facts to be substantially . as above stated, and, as matter of law, concluded: 1. That the defendants did not undertake or ■ agree to carry the said merchandise from the city of New York to the city of Maysville. 2. That the .defendants were not liable to the plaintiffs for the loss of the said merchandise. 3. That the defendants were entitled to judgment that the complaint be dismissed. He therefore directed that judgment be entered in favor of the defendants, and that the complaint be dismissed, with costs. Judgment in favor of the defendants was thereupon entered for $347.85; costs and allowance.
    Exception was duly taken by the plaintiffs to the referee’s finding of fact, in regard to the form of bills of lading in use by the defendants at the time of these transactions, and also to his several conclusions of law.
    
      Ohas. F. Sanford, for the appellants.
    I. The referee erred in admitting proof that the defendants had in use, at the time of the transactions in question, a printed form of contract or bill of lading containing careful and stringent provisions, exempting the defendants’ company from liability for losses not occurring on their own railroad. 1. The fact-thus sought to be proven does not constitute, in any sense, a usage, with reference .to which the reciprocal rights and liabilities of- the parties are to be determined, and is wholly irrelevant to any issue in the case. The practice was personal, not general, and cannot be presumed to have been within the knowledge of the plaintiffs. 2. Usages and customs, whether local or general, are never allowed to he proven in contravention of the established rules of law, nor to vary the terms of express contracts; much less should the practices of the defendants, in ■ conducting their own business, which do not amount to a usage, in the legal acceptation of that term, be allowed to affect the relations of the. parties to this particular transaction. (Lane v. Bailey, 47 Barb. 395. Sipperly v. Stewart, 50 Barb. 62. Kinne v. Ford, 52 id. 194.) 3. Even if such blank form had been actually handed to the. plaintiffs in person, before or at the time of the delivery of their property to the defendants tó be carried, it would not have determined the legal relations and rights of the parties. It would have, at best, amounted to a mere notice, and as such would have been of no avail. (Simmons v. Great Western, R. R., 2 C. B. 620. Limburger v. Westcott, 49 Barb. 283.) 4. It is manifest from the opinion of the referee, (as well as from his eighth finding of fact,) that he attached great importance to this evidence, and as it was clearly inadmissible, and ought not to have affected his decision, even to the extent of creating a bias in favor of the defendants, the judgment should be reversed, and a new trial ordered, on this error alone.
    II. The defendants were common carriers for hire between the cities of Hew York and Maysville, Kentucky. They so held themselves out to the plaintiffs, by specifying a fixed rate at which they would “ carry” his merchandise from the one point to the’other. 1. The fact that their railroad only extended over a portion of the route, and that its termini were both at intermediate points, did not prevent them from assuming the duties,sand incurring the liabilities, of carriers throughout the entire journey. (Sehroeder v. Hudson River R. R. Co., 5 Duer, 55. Van Winkle v. Adams Express Co., 3 Rob. 59. Green v. Clarke, 2 Kern. 343. Quimby v. Vanderbilt, 17 N. Y. 306. Burtis v. Buffalo and State Line R. R. Co., 24 N. Y. 269.) 2. If it be conceded that the mere acceptance, by a carrier, of merchandise marked for transportation, over a route extending beyond the limits of his own line, ordinarily fixes upon him the liability of a carrier, within the limits of his own line, but only of a forwarder beyond it, (a proposition directly at variance with the whole course of adjudication in England, and which the Americaii cases leave doubtful,) it is nevertheless well established, that if, concurrently with such acceptance, he enters into an agreement for a rate of charge at which the goods are to be transported throughout the entire journey, (whether such rate be payable at its beginning or its end,) he is in law held to have undertaken the carriage of the .goods to, and is responsible for their safe delivery at, the place of their destination. The through rate constitutes the test of through liability. ( Weed v. Saratoga and Schenectady R. R. Co., 19 Wend. 534. Merchants Bank v. Champlain Tr. Co., 23 Verm. 186, 209. Muschamp v. Lancashire and Yorkshire Railway Co., 8 Mees. & Wels. 421. Wilcox v. Parmelee, 3 Sandf. 610. Choteoux v. Leach, 18 Penn. 224. Illinois Central R. R. v. Copeland, 24 Ill. 332. Peat v. Chicago R. R., 19 Wis. 118. Western Tr. Co. v. Newhall, 27 Verm. 110. Mallory v. Burrett, 1 E. D. Smith, 248. Hart v. The Rensselaer and Saratoga R. R. Co., 4 Seld. 37. Krender v. Woolcott, 1 Hilt. 223. Dillon v. N. Y. and Erie R. Co., Id. 231. Angel v. Miss. Railway, 9 Iowa, 487. Scothorn v. The South Staffordshire Railway Co., 8 Exch. 341. Collins v. Bristol and Exeter Railway Co., Ct. of Ex. 25 L. J. R. [Exch.,] 185 ; 11 Exch. 790; Ex. Chamb. 26 L. J. R., [Exch.,] 103; 1 H. & N. 517; House of Lords, 29 L. J. R., [Exch.,] 41; 7 House of Lords Cases, 194. Welby v. The West Cornwall Railway Co., 27 L. J. R., [Exch.,] 181. Mylton v. The Midland Railway Co., 28 id. 385; 4 H. & N. 615. Coxon v. Great Western Railway Co., 29 L. J. R. 165; 5 H. & N. 274.)
    M. The defendants’ offer to carry the "plaintiffs’ goods from the city of Yew York to Maysville, at a fixed rate of freight, accompanied, as it was, by their specific instructions as to the manner in which the goods were to be marked, and the place at which they were to be delivered by the plaintiffs for carriage, and followed, as it was, on the part of the plaintiffs, by a strict compliance with such instructions, constituted, in connection with such instructions and compliance, a special contract between the parties, by the terms and conditions of which both of them were bound. (Van Winkle v. Adams Ex. Co., 3 Rob. 59.) It is frivolous to assert that what took place between the parties amounted, “ at most, to a mere unaccepted offer to contract, on the part of the freight agent,” and that “ to constitute a contract, the acceptance should be shown to have been made to the party who made the offer,”.
    IV. By holding themselves out to the plaintiff'Lewis M. Ricketts, as common carriers between Heiv York and Maysville, and.specifying, in reply to his inquiries, the rate of freight at which they were willing to undertake the carriage of his goods between those places, thereby inducing him to part with the possession of his property, which he did on the faith of their ^representation, the defendants estopped themselves from asserting that, as respects that portion of the route west of Parkersburg, they were not carriers, but forwarders merely. The case presents every feature requisite to establish an estoppel in pais against the defendants. (See Desell v. Odell, 3 Hill, 219; Plumb v. Cattaraugus Ins. Co., 18 N. Y. 394; Brown v. Bowen, 30 id. 541; Garlinghouse v. Whitwell, 51 Barb. 208; Weed v. Schenectady and Saratoga R. R., 19 Wend. 534.)
    V. The authority of their freight agent to undertake, on behalf of the defendants, or to bind them by his admissions and declarations, has not been questioned. It may reasonably be inferred from the general character of his agency, and indeed is conceded and established by the express terms of the stipulation and findings of fact. The “ instructions ” given to the plaintiff' in regard to the matter by the freight agent, are expressly referred to in both, as “ the defendants’ instructions.aforesaid.”
    VI. Whether we regard what took place between the parties as resulting in a contract, or as establishing an estoppel, the defendants became liable as- common carriers for the safe delivery óf the plaintiff's’ goods at Maysville, and such liability was in nowise restricted by the document referred to in the sixth finding of fact. 1. That document was issued to the carman of George Bliss & Go., for the account and benefit of the defendants. The defendants had undertaken the carriage of the goods from the city of Hew York, and had specified the office of the Camden and Amboy Railroád Co., pier No. 1, North river, as the place in the city of New York where the goods would be received by them for such carriage. Their delivery to the Camden and Amboy company, so far as the plaintiffs were concerned, was a delivery to the defendants. 2. The direction at-the foot of this document, suggesting its delivery to -the defendants, at their office, No. 229 Broadway, in exchange for a bill of lading to be issued by them, shows conclusively that it was not intended to regulate or control the terms of transportation, as between them and the plaintiffs, but only as between them and the Camden and Amboy Railroad Company. With its terms, therefore, the plaintiffs had nothing whatever to do. If they had, it does not, on its face, purport to prescribe terms, except as to so much of the route as lies between the cities of New York and Philadelphia, and ex vi termini it had performed its office, and become functus officio on the delivery of the merchandise to the defendants’ agent, at the place last named. 3. It does not appear that George Bliss & Co., much less their carman, had any authority to bind the plaintiffs, by accepting a bill of lading containing terms and conditions at variance with those which had been offered by the defendants. Neither they nor their carman were authorized, so far as appears, to ship the plaintiffs’ goods. The document or bill of lading received by the carman was never assented to or ratified by the plaintiffs, and its acceptance by the carman is no evidence of such assent or ratification. (Brown v. Eastern R. R. Co., 11 Cush. 97. Prentice v. Decker, 49 Barb. 21. Limburger v. Westcott, Id. 283.)
    VII. The direction at the foot of the bill of lading issued by the Camden and Amboy Railroad Company, requiring its exchange at the defendants’ office for a bill of lading to be issued by the defendants, did not charge the plaintiffs with any obligation to make such exchange, or to accept from the defendants a bill of lading containing restrictions upon their liability, not previously specified. The plain! • tiffs parted with their property, in reliance upon the statement of the defendants’ freight agent, that the defendants would carry it from Hew York to Maysville at a fixed rate of freight. A notice given to them by the person receiving it, to the effect that a bill of lading would thereafter be issued by the defendants, on demand, does not commit them to the acceptance of every condition or limitation which the defendants may thereafter see fit to insert in such bill of landing.
    
      John Slosson, for the respondents.
    I. The facts stated in the stipulation, in respect to the interview between the plaintiffs and the defendants’ freight agent, did not constitute a contract between the parties. It was a mere verbal inquiry, by the plaintiffs, as to what the defendants would charge for carrying the goods to Maysville, the answer to such inquiry and directions, how to mark, and where to send the goods. The plaintiff's were not bound to send the goods. Had the plaintiff's never sent the goods, the defendants could not have insisted that they were bound to do so, nor would they have had any claims for freight money, or damages, if the plaintiffs had refused to send, after a demand by the defendants, and offer to carry. The minds of the parties had never met; an inquiry had been answered, and the party putting the question had then retired, and for aught that appears, the defendants never knew that the goods had been sent, until this suit was brought. It is of the very essence of a contract that both parties should be bound.
    H. The only contract, if any there be, was created when the plaintiffs delivered the goods to the Camden and Amboy Bailroad Company, and received the bill of lading . annexed to the stipulation. The Camden and Amboy Bailroad Companjq in. receiving the goods and delivering the bill of lading, were acting as the defendants’ agents. The bill of lading itself was expressed to be a “ Baltimore and Ohio express route bill of lading.” It was received by the plaintiffs as such; it could not have been received as anything else. True, there was a direction at the bottom, to change it at the defendants’ office for one of the defendants’ own bills of lading, but if the plaintiffs did not see fit to do this, then- one of two consequences followed : Either they retained it for what it was expressed to be, a “Baltimore and Ohio express route bill of ladingor, they sent their goods without any contract at all with the defendants, in which latter case, as the loss occurred after the delivery by the defendants to the steamboat on the Ohio, at the termination of their own road, there can be no recovery. As the plaintiffs did not, in fact, exchange the bill of lading they received, for one of the defendants’ own bills, the bill of lading so received is the only evidence of a contract between the parties in the case. Had they exchanged it, they would have received another with almost the precise stipulations contained in this—if anything, more stringent—as will be seen by referring to the form of a bill of lading in use by the defendants at that time.
    III. The effect of a bill of lading, as a contract between shipper and carrier, is too well settled to admit of disputation ; it is controlling. (White v. Van Kirk, 25 Barb. 16. Wolfe v. Myers, 3 Sandf. 7. Merch. Mut. Ins. Co. v. Chase, 1 E. D. Smith, 115. Dorr v. Steam Nav. Co., 1 Kern. 485. N. J. Nav. Co. v. Merchants' Bank, 6 How. U. S. 344.)
    IV. By the express provisions of this bill of lading, “ the shipper, in accepting it, agrees to all its terms and conditions,” and one of those is as follows: “In case of any loss whereby any legal liability, or responsibility, shall, or may be incurred, that company shall alone be held answerable therefor in whose actual custody the goods may be at the time of the happening of such loss;” and it is admitted by the stipulation, “that the defendants’ line terminated at Parkersburg, on the Ohio river; that the defendants having carried the said merchandise safely to Parkersburg, there delivered the same on board the steamboat St. Charles, bound down the Ohio river, to Maysville, Ky., the proprietors of said steamboat being engaged in the transportation of freight, as common carriers, between Parkersburg and Maysville, aforesaid.” The steamboat company, and not 'these defendants, are the parties, therefore, responsible for the loss..
    Y. The freight agent, as such, had no authority to make such a contract, even if a contract could be created by the mere answer to a question of inquiry. It was for the plaintiff to show it, if he had the authority.
   By the Court, Cardozo, J.

What occurred between the plaintiff and the defendants’ freight agent did not amount to an agreement.

The plaintiffs did not agree to ship any goods, and their sending property to the place designated, some eighteen days afterwards, cannot be said to be an acceptance, by them, of what, putting what the freight agent said in the strongest light, was but an offer, or proposition, on the part of the defendants. (The Chicago &c. Railway Co. v. Dane, &c., 43 N. Y. 240.) When, therefore, on the 19th of September, the plaintiffs, through Bliss & Co., shipped the goods in question and took the receipt which they put in evidence, the contract, whatever it was, was made. That contract was contained in the receipt, and by the express terms of it, it was agreed that that company should alone be held answerable in whose actual custody the property should be at the time of the happening of loss, detriment, or damage; and, as the fact was shown, that the loss happened after the property had been delivered, by the defendants, to the steamboat running between Parkersburg and Maysville, the judgment should be affirmed.

[First Department, General Term, at New York,

November 7, 1871.

Judgment affirmed with costs.

Ingraham, P. J., and Cardoza and, Geo. G. Barnard, Justices.]  