
    Westcott & Northrup vs. William G. Fargo, President, &c.
    Although a referee does not find a particular fact, in terms, yet if such a finding is deemed necessary to support and uphold the judgment, the court will presume that the referee did find such to be the fact, if the evidence in the case would authorize or justify such finding.
    Where a package was received by an express company, for transportation, at its regular place of business, and receipted to the owner, and was put on the shipping-bill, for its place of destination ; and after this, the agents of the company could give no account of it whatever, or at least did not, and professed'to be unable to do so; Seld that the very fact that after receiving it in this way, the defendants’ agents paid so little attention to the package as to be unable to give any other or further account of it, was sufficient, of itself, to justify a finding of loss by negligence of the company, and even of gross negligence, if that were necessary to create the liability and uphold the judgment.
    To authorize a recovery for a negligent loss of goods by a carrier, the plaintiff is not bound to show, affirmatively, how the loss occurred, and that its occurrence was through the defendant’s negligence.
    The rule is now well settled that a common carrier may limit his common law liability, in certain particulars, and to a certain extent, by express contract with the owner or shipper of goods.
    But carriers cannot limit their liability by a mere notice, even though the notice is brought to the knowledge of the person whose property they carry. It must be by express contract.
    In cases where a receipt has been given by a carrier, for the goods, containing a clause limiting and restricting his liability, it has generally, if not uniformly, been held that whether such receipt was to be regarded as a contract, depended upon the question Whether the owner of the goods, in taking the receipt, knew its contents, or was to be presumed to know them. If he knew, or was presumed to have known, from the nature of the transaction, the law infers his assent, and makes it the contract between the parties. Otherwise there is no meeting of minds, and no express contract.
    Where owners of goods, themselves, furnished the blank receipt which the carriers’ agents signed, it having been taken from a book containing blank printed receipts which they had previously obtained from the carriers ; if was held that such owners must be presumed to have known the contents of the receipt, and to have assented to it.
    And the blank, left in the receipt, for the value of the goods, not being filled, and the referee finding that neither the carriers nor their agent who received and receipted the package had any knowledge that its value exceeded $50, or any notice or reason so to believe; although the receipt contained a provision that unless the value of the package was specified therein, the carriers should not be liable to an amount exceeding $50; it was further held that the referee correctly decided that the package was received to be carried according to the terms of the receipt, and upon the contract of which the receipt was the evidence. And that the defendants were not therefore liable, in any event, beyond the sum of $50, if the loss fell within the contract, and was covered by it.
    Where a loss, occasioned by the carelessness or negligence of a carrier or his agents or servants, is not mentioned, in terms, in the contract, the law will not presume that a loss so occasioned was intended by the parties.
    The contract is to be construed most strictly against the carrier, where it rests in a receipt signed by him only; and when it stipulates for a restricted liability in case of loss, it will not be construed to embrace a loss arising from the careless and negligent acts of the carrier or his servants, unless a loss from such cause is provided for, in express and unequivocal terms, in the contract.
    And the rule of construction is the same where, by the terms of the contract, the carrier is only to be held liable as a forwarder. The exemption, in such cases, only applies to losses for which the carrier would be liable as insurer, in his capacity of common carrier.
    A carrier may, by express contract, exempt himself from liability for "a loss arising even from the carelessness and negligence of his servants or agents. But in all such cases, where the exemption for loss from such cause is expressly provided for, in the agreement, it has been uniformly held that such contract had no application to losses occasioned by the fraud or gross negligence of the carrier or his servants and agents; and that the stipulation tion for exemption only applied to losses arising from want-of ordinary care. Where there is no such stipulation in the contract, it must be held that the contract does not relate to losses arising from the negligence of the carrier or his agents.
    The same rule is applicable to a stipulation that any claim for loss shall be presented within thirty days from the accruing of the cause of action. The ■ presentation of the claim within the time, and in the manner, specified, is not a condition precedent to the right of action.
    
      It is no objection to an action against an express company, to recover for a loss of goods entrusted to it for transportation, that the plaintiffs are corporators or members of the company.
    APPEAL, by the defendant, from a judgment entered upon the report of a referee.
    The action was brought to recover for the value of a package entrusted tó an express company, of which the defendant Fargo was president, for transportation, and which was claimed to have been lost through the carelessness and negligence of the company.
    
      Francis Kernan and Hooper C. Van Vorst, for the appellants.
    
      Alexander T. Goodwin, for the respondents.
   By the Court, Johnson, J.

As we understand the finding of the referee, the fact is expressly found, that the package in question was lost through the careless and negligent conduct of the express company’s agents or servants. He finds that the allegations of the complaint numbered one, two, three and four, are true. The complaint, as it appears in the case, does not contain those numbers, but it was stated upon the argument by the plaintiffs’ counsel, and understood to be conceded by the other side, that number four, in the complaint, as it stood at the time of the trial, contained the allegation of loss by reason of the careless and negligent conduct and management of the defendants’ agents and servants.

But if such was not the finding in terms, and such finding should be deemed necessary to support and uphold the judgment, the court will presume that the referee did find such to be the fact, if the evidence in the case would authorize or justify such finding. (Grant v. Morse, 22 N. Y. 323. Chubbuck v. Vernam, 42 id. 432. Rider v. Powell, 28 id. 310.)

We think the e\ndence before the referee Avas ahundantly sufficient to authorize the finding of the fact of the loss of the package by the negligence of the defendants. It Avas received by the defendants at their regular place of business, and receipted to the plaintiffs, and was put on the shipping-bill for its place of destination. After this the defendants’ agents can give no account of it whatever, or at least do not, and profess to be unable to do so. The very fact that after receiving it in this way the defendants’ agents paid so little attention to the package as to be unable to give any other or further account of it, is sufficient of itself to justify a finding of loss by negligence, and even gross negligence if that were necessary, to create the liability and uphold the judgment.

The defendants’ counsel insists that before a recovery can be had for a negligent loss of goods, it is for the plaintiff to show affirmatively how the loss occurred, and that its occurrence was through the defendants’ negligence. But, in most cases, and especially in a case of this kind, it would be utterly impossible for the plaintiffs to make any such proof. The goods are exclusively in the possession of the defendants, and the plaintiffs have no access to them, and, presumptively, can give no account of them after delivery, except as they derive information from those having the laAvful custody. If they do not and cannot tell, hoAV can the plaintiffs ? The defendants ought to know, and the plaintiffs have no means of knowing. If the rule contended for were the true one, there could be no recovery for loss in a vast majority of cases when the .recovery depended upon establishing negligence.

Such a rule would be quite too dangerous and too destructive to the interest of all bailors to be sanctioned or countenanced. On this point we are referred to the case of Cochrane v. Dinsmore, decided in the Court of Appeals, and not yet reported, and have been furnished with'the manuscript opinion of the chief justice of that court in the case. But the decision in that case does not sustain the position contended for. In that case it was known, or supposed to be known, how the loss occurred. It was by the burning of the vessel in which the money or property was carried. And the judge charged the jury that unless the defendant gave evidence to show that the ship did not take fire through the negligence of those in charge, the plaintiff" was entitled as matter of law to recover. That, the burden was upon the defendant to negative the fact of negligence, and to show that there was no negligence in regard to the origin of the fire in the vessel. This was held to be erroneous in point of law, and that the case should have been submitted to the jury upon all the evidence, to find whether the loss was in fact occasioned by the defendant’s negligence. That decision does not, as we conceive, affect the case, because here the fact of negligence is found, or is presumed to have been found, from the evidence.

Assuming that the fact of loss by the defendants’ negligence is established, are the defendants liable beyond the amount of $50. The value of the package lost was $1104.80 cents. The defendants were common carriers, and but for the receipt or contract they entered into on receiving the goods, would clearly have been liable for the full value.

We understand the rule to be now well settled, that a common carrier may limit his common law liability in certain particulars, and to a certain extent, by express contract with the owner or shipper of the goods. (Dorr v. N. J. Steam Nav. Co., 11 N. Y. 485. Mercantile Mu. Ins. Co. v. Calebs, 20 id. 173. Bissell v. N. Y. Cent. R. R. Co., 25 id. 442. Parsons v. Monteath, 13 Barb. 353. Moore v. Evans, 14 id. 524. Meyer v. Harnden's Express Co., 24 How. 290. French v. Buffalo, N. Y. and Erie R. R. Co., 4 Keyes, 108.) But carriers cannot limit their liability by a mere notice, even though the notice is brought to the knowledge of the person whose property they carry. (Blossom v. Dodd, 43 N. Y. 264. Dorr v. N. J. Steam Nav. Co., supra.) It must be by express contract. Questions have sometimes arisen whether a receipt given by the carrier for the goods, containing a clause limiting and restricting his liability, operated as a contract to that effect between the carrier and the owner of the property carried under it, as in the case of Blossom v. Dodd, just cited. In such cases it has generally, if not uniformly, been held, that whether such receipt was to be regarded as a contract, depended upon the question whether the owner of the goods, taking the receipt, knew its contents, or was presumed to have known them. If he knew, or is presumed to have known, from the nature of the transaction, the law infers his assent, and makes it the contract between the parties. (Blossom v. Dodd, supra.) Otherwise there is no meeting of minds, and no express contract. In the case at bar, the plaintiffs must be presumed to have known the contents of the receipt, and to have assented to it. They furnished the blank which the defendants’ agent signed. They had previously been in the habit of doing business with the defendants, and had been furnished with a book containing these blank printed receipts, which they kept, and from which the receipt in question was taken by them and sent to the defendants to be signed when the goods were delivered. The blank left in the receipt for the value of the goods was not filled, and the referee finds that neither the defendants nor their agent, who received and receipted the package, had any knowledge that its value exceeded $50, or any notice or reason so to believe.

We are of the opinion, therefore, that the referee correctly held that the package was received to be carried according to the terms of the receipt, and upon the contract, of which the receipt was the evidence. The defendants are not, therefore, liable in any event beyond the sum of $50, if the loss falls within the contract, and is covered by it. But it does not. Loss occcasioned by the carelessness or negligence of the defendants or their agents or servants, is not mentioned in terms in the contract, and the law will not presume that a loss so occasioned was intended by the parties. The contract is to be construed most strictly against the carrier, where it rests in a receipt signed by him only ; and where it stipulates-for a restricted liability in case of loss, it will not be construed to embrace a loss arising from the careless and negligent acts of the carrier or his servants, unless a loss from such cause is provided for in express and unequivocal terms in the contract. (Wells v. Steam Nav. Co., 8 N. Y. 375. Stedman v. Western Trans. Co., 48 Barb. 97. Hooper v. Wells, Fargo & Co., 5 Am. Law. Reg., N. S., 16, and note to case.)

And the rule of construction is the same where, by the terms of the contract, the carrier'is only to be held liable as a forwarder. The exemption in such cases only applies to losses for which the carrier would be liable as insurer, in his capacity of common carrier.

This we regard as' a sound and salutary rule of construction. The law seems to be now well settled in this State, that a carrier may, by express contract, exempt himself from liability for a loss arising even from the carelessness and negligence of his servants or agents. But in all such cases, where the exemption ’ for loss from such cause is expressly provided for in the agreement, it has been uniformly held that such contract had no application to losses occasioned by the fraud or gross negligence of the carrier or his servants and agents, and that the stipulation for exemption only applied to losses arising from want of ordinary care. (Guillaume v. Hamburgh and Am. Packet Co., 42 N. Y. 212. Wells v. The Steam Nav. Co., 8 id. 375. Alexander v. Greene, 7 Hill, 544.) But here there is no such stipulation, and.it must be held that the contract does not relate to losses arising from the negligence of the defendants or their agents. The same rule is applicable to the stipulation in respect to presenting the claim within thirty days from the accruing of the cause of action. But beside this, the presentation of the claim within the time, and in the manner there specified, is not a condition precedent to the right of action, and as a limitation it is not set up in the answer. (Place v. Union Express Company, 2 Hilt. 19.)

[Fourth Department, General Term, at Buffalo,

June 4, 1872.

It is no valid objection to the action that the plaintiffs are corporators or members of the company. The action is against the corporation. We are, therefore, of the opinion that the judgment is fight and should be affirmed.

Mullin, Johnson and Talcott, Justices.]  