
    PHILIP A. MADAN, Plaintiff and Respondent, v. ROBERT SHERRARD, Jr., President of the New York Transfer Co., Defendant and Appellant.
    I. CARRIERS OF GOODS. BACCACE EXPRESS.
    
    1. Limiting their liability by clauses of agreement inserted in instruments delivered by them on the receipt of goods for carriage.
    1. Effect of instrument as limiting liability.
    
      1. Test of.
    1. The' chabacteb in which it was beceived is.
    
      (a.) If received and taken by the party delivering the goods for carriage as a contract between him and the carrier, the clauses of limitation will be binding ; otherwise not.
    2. Presumption as to the character in which the instrument is received arising erom its nature.
    1. Bills of lading and other commercial instruments. Persons receiving them are conclusively presumed, to know that they contain the terms on which the property is "to be carried, and to have assented thereto (62 N. T. 179).
    BUT, '
    
    _ 2. Where the business of the carrier is the carriage of the luggage of travellers from railroads, steamboats, ác., to their residences, or to other railroads, steamboats, ác., and he employs agents to go on trains of cars, and steamboats, &c., and solicit from the passengers such carriage, and such agent, on receiving the luggage, or the railroad or steamboat check therefor, gives to the passenger a printed slip, after having written thereon a description of the luggage by the number of the check received, or otherwise, there is no such conclusive presumption; and the question as to the character in which the paper was received is to be determined by the surrounding circumstances.
    (a.) Domestic bill oe lading.
    The placing of these words on the paper does not alter the rule.
    II. APPLICATION OF PRINCIPLES.
    
    The plaintiff (Madan) was in a car coming to the city of New York. Defendant’s agent came into the car asking for baggage. Plaintiff beckoned to him; he came to plaintiff, took his railroad check for his trunk, asked his address, wrote the number of the check and the address on the paper, which it is now claimed constituted a contract of limitation, handed it to plaintiff, and passed on. This is all that occured. There was evidence that the light in the car was so poor and dim as to render it impossible to read. The agent wrote the number and address by the aid of a lantern which he carried on his arm. Plaintiff did not read or know the contents of the paper, except the number of the check and the address. He did not try to read it, but immediately folded it up and put it in his pocket. There was evidence that plaintiff had before received from baggage carriers receipts for baggage intrusted by him to them, but no evidence that he had ever read . them or knew their contents. It was also in proof that he had sent merchandise and freight by carriers, in which cases he read the receipts. Plaintiff testified that he knew the'paper related to the carriage of his baggage, and that it was the only hold he had on the company.
    Held
    1. A charge, that if under all the circumstances the jury believed plaintiff knew that the agent proffered the paper as a contract, and accepted it as such, he is bound by it, no matter whether he knew the contents or not, and his recovery must be limited to $100, but if they thought that plaintiff did not know that the paper was meant to be a contract and had no reason to believe so and could not have read it, then he was entitled to recover the value of the goods lost;— Contained no error calling for a reversal.
    3. That a refusal to charge, that if plaintiff did not attempt to read or examine or think of reading or examining the paper, the absence of light in the car was immaterial,
    Was no error.
    3. That refusal to charge in terms, "that if there were sufficient facts about the delivery of the paper under the circumstances of the case to challenge plaintiff’s attention as a man of. ordinary discretion in yiew of the mode of doing business with which he was familiar, that it related to a portion Of defendant’s duty with respect to his baggage, then he is bound;”
    Did not under the evidence in the case constitute error.
    4. That the judgment entered upon a verdict for the value of the property should be affirmed.
    Before Curtis, Ch. J., and Speir, J.
    
      Decided May 8, 1877.
    The plaintiff sues the defendant as a common carrier for the value of a trunk and contents, upon the ground that the same was lost by defendant’s negligence. The answer admits that the defendant is a carrier for hire, but alleges an agreement limiting the liability of the defendant in case of loss to $100, unless specially agreed for. That no such extra risk was agreed or paid for.
    The appellant’s agent gave to the respondent, while he. was traveling on the Mew York and Mew Haven Railroad, a receipt or check for the trunk, to deliver the same at Mo. 47 West Forty-seventh street, M. Y., and took his brass check therefor. It was about 10 o’clock in the evening of September 1. The agent was passing through the car in which, the respondent ' was seated, asking for baggage; the respondent beckoned to him, he came to the respondent and asked his address, took the railroad check for the trunk, and wrote the number of such check and respondent’s address on the receipt, by the light of the lantern he had on his arm, and passed on. Mothing was said about the contents of the receipt, and no remarks made except, to ask where the trunk was to be delivered. The respondent did not- read or know the contents of the receipt, except the number of the brass check and the place where the trunk was to be delivered. It was never delivered. When the plaintiff received the receipt he immediately folded it up and put it in his pocket, and did not try to read it.
    There was evidence that the light in the car was so poor and dim as to render it impossible to read. There was also evidence that plaintiff had before received from baggage carriers receipts for baggage entrusted by him to them, but no evidence that he had ever read them or knew their contents. It was also in proof that he had. sent merchandise or freight by carriers, in which cases he read the receipts. Plaintiff testified that he knew the paper related to the carriage of his baggage, and that it was the only hold he had on the company.
    The paper given to the plaintiff was as follows :
    
      
      
    
    
      After the close of the evidence on both sides defendant’s counsel moved that the court direct a verdict for the plaintiff for $100; which motion was refused and exception taken.
    He also requested the court to instruct the jury as matter of law that the delivery of this receipt to the shipper at the time of the receipt of the property, constituted a contract under the circumstances of this case, and the plaintiff is limited In his recovery to $100 as the value of the property ; which was refused and exception taken.
    The court thereupon charged the jury in substance:
    “If Mr. Madan received the paper as a contract, then he can only recover $100; and it. is within your province, if you think it necessary to compensate him further, to add seven per cent, interest on-that $100, from the first day of September, 1873.
    ‘‘ On the other hand, if you think that Mr. Madan did not know that that was meant to be a contract, and had no reason to believe so, and could not have read it, then he is entitled to recover the value of the goods he lost.”
    Defendant’s counsel asked the court to .charge the jury “That if there were sufficient facts about the delivery of this paper under the circumstances of the case, to challenge his attention as. a man of -ordinary discretion, in view of the mode of doing business with which he was familiar, that it related to or pertained to defendant’s duty, with respect to the baggage, that then he is bound.”
    Thereupon the the.court thus, instructed the jury : "I cannot charge you in that way. I can charge no further than, this; that if from all the circumstances of the case the jury believe Mr. Madan knew that Bishop proffered that as a contract, and he accepted it as such, he is bound by it, no matter whether he knew the contents or not.”
    
      Defendants’ counsel then asked the court to charge the jury “That if the plaintiff did not attempt to read or examine, or think of reading or examining the paper Exhibit A, the absence of light in the car was immaterial.”
    The court refused so to charge. The defendant’s counsel duly excepted to each of the refusals of said justice to charge as above requested.
    The jury rendered a verdict for plaintiff for $414.25.
    From the judgment entered on the verdict, defendant appealed to the general term.
    
      Luke A. Lockwood, attorney, and of counsel, for appellant, among other things, urged :
    I. The law is well settled that, in the absence of fraud or imposition, the receipt delivered by the agent of defendant to the person shipping the package, must be held to be the contract between the parties (Collendar v. Dinsmore, 55 N. Y. 200 ; Magnin v. Same, 56 Id. 168; Kirkland v. Same, 62 Id. 171). It is not pretended that there was any fraud or imposition in this case.
    II. 1st. The learned judge erred in refusing to charge, as first requested after the close of his charge. 2nd. The learned judge erred in refusing to charge, as secondly requested after the close of his charge, because the evidence showed that the plaintiff neither tried to read the contract, nor did it occur to Mm to read it. What possible effect could the state of the light in the car have had ? Undoubtedly the evidence, as to light, was suggested by the case of Blossom v. Dodd (43 N. Y. 264): Particular attention is requested to the form and appearance of the paper relied upon by the defendant, in that case, which was thought of so great importance as to require its exact reproduction at page 265. That case turns upon the character and appearance of the paper itself. The court says, however, “The delivery and acceptance of a paper containing the contract, may be binding though not read, provided the business is of such a nature, and the delivery is under such circumstances, as to raise the presumption that the person receiving it knows that it is a contract containing the terms and conditions upon which the property is received to be carried,” and cites with approval the opinion of the court in Grace v. Adams (100 Mass. 560). “It is not claimed that he did not know, when he took it, that it was a shipping contract or bill of lading.” So in Van Toll v. The S. E. R. Co. (104 Eng. Com. Law R. 75), the same principle was decided. Miller, J., said, “Assuming that the plaintiff did not read the terms of the condition, it is evident she knew they were there.” The bill of lading in this case, Exhibit A, is inserted that the court may see that it is not a “card or check” for baggage calculated “ to repel the idea of a contract, but to invite attention to it as a contract.”
    III. The facts of this case bring it directly within the principle decided in Kirkland v. Dinsmore (62 N. Y. 176).
    j T. C. Campbell, attorney, and of counsel, for respondent, among other things, urged:
    I. The fact is, the car being dimly lighted, so that the plaintiff could not read the paper presented, he had a right to infer it was nothing more than a token given in exchange for his check, and he cannot be presumed to know it contained a contract, and did not in fact contain any. The most that could be said was it contained matter by which the defendant wished to entrap the plaintiff with a contract. If the defendant meant to deal honestly, it should have informed plaintiff of the contents of the paper, and given him an opportunity to have assented to its terms or dissented. We claim as in the case of Blossom v. Dodd. First. The transaction was not such as necessarily charged the plaintiff with knowledge the paper contained a contract. Second. The circumstances repel the idea that plaintiff had knowledge that the receipt contained a contract or that the plaintiff assented to its terms. The case is in all essential particulars like the case of Blossom v. Dodd, and the court should have directed a verdict for plaintiff without submitting the case to the jury, as there was no evidence, in fact, on which they could find for the defendant. The defense could not be maintained without violating the established rules as to contracts, and without completely overthrowing the laws which are absolutely necessary to ensure fair dealings on the part of common carriers (Butler v. Heand, 2 Campbell, 515; Blossom v. Dodd, 43 N. Y. 264; Prentice v. Decker, 49 Barb. 21; Lemuegierger v. Wescott, 49 Id. 283; Parker v. The South Eastern R. Co., Law and Equity Reporter, vol. 2, 599-600). He also commented on the cases of Kirkland v. Dinsmore, 62 N. Y. 175 ; Hollister v. Nowlen, 19 Wend. 234; Dorr v. New Jersey Nav. Co., 11 N. Y. 485; Butler v. Herne, 3 Campb. 414; Prentice v. Decker, 49 Barb. 21; Limburger v. Prescott, 49 Id. 283 ; Grace v. Adams, 100 Mass. 560 ; Gall v. S. E. R. Co. ; Parker v. South Eastern R. Co., 12 Law and Equity Reporter, 12.
    II. The only real exception to the charge arose cm the request of defendant to charge the jury if the plaintiff did not attempt to read or examine, or think of reading or examining, the paper, the absence of light in the car was immaterial. The fact there was no light sufficient to read was a fact proper to be proved in the case. It might have been the very reason why the plaintiff did not make the attempt to read the paper. The court properly commented on the subject in the charge, and to charge as requested would be doing the plaintiff injustice. On the whole case, it is manifest justice has been done, and the judgment should be affirmed.
   Speir, J.

The question in the case is, was the receipt, received by the plaintiff, taken by him as a contract between the parties ? The jury were charged that if he did not accept it as a contract, and was not bound so to accept it, he was entitled to recover the full value of the property, and if he received it as a contract between them, then he can recover only the limited sum and interest. There is no positive evidence that the parties directly assented that the paper was to be • taken as a contract, and the point is, do the facts and ' circumstances show that the plaintiff knew or should have known that it was more than a mere receipt, but an implied contract, the terms of which he should have informed himself.

It is apparent from the plaintiff’s testimony that he was acquainted with the nature of express receipts, that he had traveled upon railroads and boats, and received receipts for packages and freight, and that he had received receipts similar to the one given him. This would show that he had or ought to have knowledge that the receiving of packages or freight by express, or the common carrier, must be in writing. The terms for carrying vary as to distances to be carried, weight, quality, and character of the property to be carried. The business itself implies an express contract, the terms of which are to be ascertained. In such a case the party is bound to- treat the paper as a contract when he takes it, and must be assumed to do so. But in the case of carrying a trunk from a railway station to one’s residence, by express, and delivering into the hands of an agent a check containing the number, and receiving a receipt, does not necessarily imply terms of limitation to be set down in writing. It may be an implied contract, and it might or it might not contain terms of limitation. In such a case a person to whom the receipt is delivered, is not obliged, as matter of law, to make himself acquainted with its terms, and bound by them as if he had done so. This distinction is taken and clearly expressed in a recent-case, decided in May, 1876 (Parker v. The South Eastern R. Co., Law and Equity Reporter, vol. 12, p. 12). From the defendant’s using a lantern to write what he did, it is pretty evident that the light in the car was not sufficient to read by (Blossom v. Dodd, 43 N. Y. 264). Although this is not conclusive evidence that the plaintiff might not have read the paper had he tried to do so, there was nothing in the transaction which obliged him to make himself acquainted with its terms. There was not evidence enough to show that the plaintiff must have known, or ought to have known that the receipt contained some agreement which limited defendant’s liability. As the common law liability cannot be restricted by notice merely, the question of knowledge was properly left to the jury. The learned judge in terms charged if the plaintiff accepted the receipt as a contract, he was bound by it whether he knew it or not. The defendant relies upon the cases of Grace v. Adams (100 Mass. 560), and Van Toll v. The S. E. R. Co. (104 Eng. Com. Law R. 75), to show that parties are bound by such receipts. In the first case it was held from the nature of the transaction the party was presumed to have assented to the terms although he had not read the paper. In the other case there was evidence that the plaintiff assented to the terms.

The judgment and order appealed from must be affirmed, with costs.

Curtis, C. J., concurring.

The decision in the case of Blossom v. Dodd (43 N. Y. 264), governs the present case. The evidence sustains the finding of the jury that there was no contract. In this case, as in Blossom v. Dodd, no intimation was given that the memorandum handed back (apparently as a receipt for the plaintiff’s baggage), contained a contract to limit the carrier’s ’ liability.. The same circumstances also exist to repel the idea of a contract. There is the same impossibility .to read in the dimly-lighted car; and the printing in fine type of the so-called contract, though not quite so fine, is made still more illegible by night in the present case than in that, from being printed in pale green ink. The case of Kirkland v. Dinsmore (62 N. Y. 179), refers to the ruling in Blossom v. Dodd (supra), and maintains the distinction between a traveler receiving a card or ticket for his convenience, and protection in having his luggage carried by a porter from a railway station to his lodgings, and the transaction of commercial business through bills of lading and other instruments of that character.

No case holds that a traveler, receiving a receipt of .this nature, and under like circumstances, where it is impossible to read it, and no intimation is given him of its embracing a contract, is bound by such contract.

. Besides, there are intrinsic difficulties in extending any such immunity from liability, to parties engaged in the porterage of travelers’ baggage at night in large communities. The printing near the commencement of the receipt, the words “Domestic Bill of Lading,” does not obviate the. distinction drawn in the cases above referred to, though possibly so intended.

The court properly left the questions of fact, arising on the trial, to the jury.

I concur in the affirmance of the judgment and order appealed from.  