
    James Belger vs. William B. Dinsmore, President of the Adams Express Company.
    A receipt, such as is usually given by express companies for goods delivered to them for transportation, is not subject to any stamp duty, but is covered by the exception in the act of congress of 1865.
    An express company is to be regarded as a common carrier, and its responsibility for the safe delivery of property entrusted to it, is the same as that of a carrier. It cannot by a notice, or by an exception in a receipt, which is not shown to have come to the knowledge of the shipper or holder, exempt itself from liability in whole or in part, if goods are lost through its negligence.
    Nor will proof, even, that such notice was brought to the knowledge of the owner, be sufficient to relieve the carrier’s liability; but an express contract must be proven.
    In an action against an express company, to recover the value of a trunk and its contents, which it had undertaken to transport, which were lost while in its care, the defendant gave in evidence a receipt, given at the time of receiving the trunk, in which the liability of the company was limited to the sum of $50. There was no evidence, on the trial, that knowledge of the contents of the receipt ever came to or was brought home to the plaintiff. The justice not only refused to submit to the jury the question whether there was any evidence of a contract between the parties, but held that the receipt was a binding contract between the parties and limited the defendant’s liability to $50 and interest, and directed a verdict for the plaintiff for that amount. Held that in this the justice erred.
    THE plaintiff sues the defendant to recover the value of a trunk placed in charge of the express company, and lost while under their care. The loss was not disputed on the trial. The plaintiff valued the trunk and contents at $467.
    The defendant offered in evidence a receipt, given at the time of receiving the trunk, on which was a stipulation on the part of the company, limiting their liability in various ways. The only fact material in this controversy is as follows: “ Eor in any event shall the holder hereof demand beyond the sum of fifty dollars, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured by them and so specified in this receipt, which insurance shall constitute the limit of the liability of the Adams Express Company.”
    The articles included in this receipt were six trunks and. three boxes. One of the trunks was lost.
    Upon the trial, the admission of the receipt in evidence, when offered by the defendant, was objected to on the ground that it was not stamped, which objection was overruled and the plaintiff excepted. The court then permitted the defendants’ counsel to affix a stamp, in court'.
    The admission of the receipt in evidence was also objected to on the ground that there was no evidence that knowledge of the contents of the receipt ever came to or was brought home to the plaintiff; which objection was overruled, and the counsel for the plaintiff excepted.
    The plaintiff asked to submit the question of negligence to the jury, which the court refused, and held that the receipt was a contract between the parties, and the defendant was excused from all liability except as stated in the receipt; and the judge so charged the jury, and directed them to find a verdict for the plaintiff for $50 and interest; to which the plaintiff excepted. The jury so found. The court ordered the exceptions to be heard at the general term in the first instance, and judgment was suspended.
    
      David JP. Hall, for the plaintiff.
    I. The Adams Express Company are governed by the rules of law applicable to common carriers, in their character of express agents, forwarders, and bailees for hire. (Sweet v. Barney, 23 N. Y Rep. 335.) In this case the Court of Appeals held “ that the defendants (an express company) were common carriers,” and said, “persons whose business it is to receive packages of bullion, coin, bank notes, commercial paper, and such other articles of value as parties see fit to entrust to their care, for the purpose of transporting the same from one place to-another for a compensation, are common carriers, and responsible as such, for the safe delivery of property entrusted to them.” The Supreme Court of Massachusetts has just decided in-the. same way in the case of Buckland & Co. v. Adams Express Co.) “In this country, in recent times, the business of carrying goods is .almost monopolized by what are called expressmen.” “ These are undoubtedly common carriers.” (Parsons’ Mercantile Law, 202.) “ The general principles of agency extend to common carriers, and make them liable for the acts of their agents done while in the discharge of the agency or employment.” (Id. 216.)
    II. The plaintiff made out his case upon the trial as to the bailment of the property in question to the defendant, without alleging any written contract, and the defendant, by resting the defense upon a receipt, having written upon it a-notice limiting his liability in case of loss, which he offered in evidence in proof of the contract between the plaintiff and himself, elected to subject himself to the application of the strict rule of law in reference to contracts, and the question whether or not that notice was brought home to the plaintiff; and whether, if so, it was assented to by him, were questions of fact, which should have been left to the jury to determine upon all the evidence; under the direction of the court. Ho party will be affected by any notice unless a knowledge of it can be brought home to him. “ The question is one of fact, which the jury will determine upon all the evidence, under the direction of the court.” (Parsons’ Mercantile Law, 223. Dorr v. New Jersey Steam Navigation Co., 11 N. Y. Rep. 485.)
    The justice, at the trial, erred, therefore, in holding “that the taking'of the receipt by the plaintiff’s wife, when she delivered the trunk to the express agent, was evidence that she then knew its contents.” And in holding “ that said receipt was itself a contract between the plaintiff and the defendant, and that the fact of its acceptance by the plaintiff as shipper of the goods in question at the time of the shipment of said goods, was sufficient evidence of notice to the plaintiff of its contents being brought home to the knowledge of the plaintiff, or his attention being directed to it, and that the fact of such knowledge must be presumed from the receipt being accepted.” The case of Brown v. Eastern Railroad Co., (11 Cush. 97,) was an action of assumpsit for lost baggage.- There was a notice printed on the back of the passage ticket given to the plaintiff, that the defendants would not be responsible beyond a specified sum; but no other notice was given, nor was the plaintiff’s attention called to this. Held, that these facts did not furnish that certain notice which must be.given to exonerate the carrier from his liability. The same doctrine has very recently been held in the Supreme Court, circuit, of Kings county, by his honor Judge Gilbert, in the case of Williams v. Dodd, but in that case, the receipt was put in evidence by the plaintiff, and not by the defendant. In the case of The Camden and Amboy R. R. Co. v. Baldauf, (16 Penn. Rep. 67,) it was held incumbent on the carrier to prove, that the passenger had actual knowledge of the limitation in the notice. The justice erred further in his ruling, quoted above, inasmuch as his decision prevented the plaintiff from adducing testimony upon the point as to whether or not the notice was assented to.by him, and in confounding the act of taking the receipt with the notice printed upon it, with that acceptance which would imply assent to its terms. “A common carrier cannot screen himself from liability by notice, whether brought home to the owner or n4>t. Hotiee is no evidence of assent on the part of the owner, .and he has a right to repose on the common law liability of the carrier, who cannot relieve himself from such liability by any act of his own.”. (19 Wend. 234. ■ Dorr v. New Jersey Steam -Navigation Co., 11 N. Y. Rep. 485. Parsons’ Mercantile Law, 223.)
    HI. But, even if the receipt and notice constituted a contract binding upon the parties, the defendant is still liable for negligence and carelessness, if these can be proved or lawfully inferred. The justice erred, therefore, again, in refusing leave to the plaintiff to introduce proof on the point of negligence, and in refusing leave to go to the jury on this point, and in holding “ that the receipt was to all intents and purposes a contract between the parties, and that the defendant was by it excused from all liability except as stated in the receipt.” (Parsons’ Mer. Law, 224. Dorr v. N. J. Steam Nav. Co., 11 N. Y. Rep. 485.) In the present case, the failure of the defendant to account for the loss of the property in question by accident, or in any way, gives rise to the just inference that the loss was caused by the gross negligence and default of the defendant and its agents, in the premises.
    
      C. A. Seward, for the defendant.
    I. A common carrier may limit his liability. Upon this point, as positive precedent supplies the authority, argument a priori is unnecessary. (York Company v. Central Railroad, 3 Wallace U. S. 111. Parsons v. Monteath, 13 Barb. 353. Moore v. Evans, 14 id. 524. Dorr v. N. J. Steam Navigation Co., 1 Kern. 485. Lee Marsh, 43 Barb. 102.) In this last case, Leonard, P. J. said: “I think it must be considered as settled, in this state, that common carriers may limit their liability for negligence, in almost any respect, by express contract,” and, “that such contracts are not against public policy.” This was concurred in by Sutherland and Barnard, JJ.
    II. The receipt given in evidence constituted a contract between the parties. It is called, in the receipt itself, an “agreement,” anda “contract.” It was so construed at nisiprius. It specifies the terms upon which the carriage was undertaken, and in so doing extends beyond the simple. acknowledgement of the delivery of the subject of transportation. The receipt was a bill of lading.
    III. The limitation of value to $50, unless otherwise expressed in the agreement itself, was valid. 1. The reward of the carrier is predicated on the value of the thing carried. Such apportionment is reasonable, because the value is the prime element of risk, and the law allows compensation proportioned to risk. 2. This stipulation limits the common law liability of the carrier as insurer, and is as reasonable as an agreement in a policy to abridge the statutory period of limitation. Such agreements are valid. (Cray v. The Hartford Fire Ins. Co., 1 Blatch. 280. Reilly v. the Ætna Ins. Co., 30 N. Y. Rep. 136. Roach v. N. Y. and Erie Ins. Co., Id. 546.) 3. This very stipulation, and others, differing in amount only, have been frequently the subject of judicial sanction. ( Van Toll v. The S. E. Railway Co., 12 C. B. N. S. 75, 104, Eng. Com. Law. Newstadt v. Adams, 5 Duer, 43. Van Winkle v. Adams Express Co., MS. Gagnebin v. The American Express Co., MS. Nash, referee. Parker v. Dinsmore, MS. Cowles, referee. Meyer v. Harnden Express, 24 How. Pr. 290. Meyer v. Harnden Express Co., 1 Daly, 227. Boorman v. American Express Co., MS. Sup. Court of Wisconsin.)
    
    IV". In the present case the insurance and acceptance of the receipt constituted a valid agreement, effectually limiting the liability of the defendant to §50 in case of loss. 1. As to the defendant, the consignor and consignee were identical. The goods were delivered by her and wére addressed to her. In the absence of knowledge, the legal presumption is in favor of the ownership of the consignee. (Sweet v. Barney, 23 N. Y. Rep. 335.) But where, as here, consignor and consignee aré one and the same, the carrier has, at .least, a right to suppose that the consignor is competent to contract as to the terms of carriage. Such, indeed, would be the rule if the consignee were another person. (Moriarty v. Harnden Express, 1 Daly, 227) 2. All bills of lading are unilateral, and yet are universally held to conclude the shipper. ■ A promissory note, when paid by its maker, belongs to him, and equity will compel its restoration, though the holder • never entered into any agreement to return it. The sender of a telegram is con-eluded by the conditions contained in the printed blanks for messages, furnished by the telegraph company. (Breese v. U. S. Tel. Co., 45 Barb. 274. MacAndrew v. The Electric Tel. Co., 17 Com. B. 384, E. C. L.) The conditions of a policy are binding upon the assured, though not signed by him. In fine, the majority of human contracts are unilateral, and repose for their obligation upon the assent which the law implies from their acceptance. 3. The plaintiff stipulated that the receipt was issued to him, and received by him, as shipper, and he produced it on the trial. This implies both knowledge and assent. In this country the legal presumption is in favor of education and of an ability to read. If the reception and retention of an unpaid account without objection, is sufficient to enable the creditor to recover upon an insimul eomputassent, or a stated account, (12 Wend. 413; 1 Kern. 172; 12 Pet. 330; 45 Barb. 490,) a fortiori vix dubitari posse videtur, that the reception and retention of a bill of lading will conclude the educated shipper, unless he proves his dissent. The burden is upon him to show ignorance or dissent. In King v. Woodbridge, (34 Vermont Rep. 571,) it was said that “apaper being shown to be in the custody of the plaintiff, a due and proper delivery of it to him, and of his assent to its terms are to be presumed, and the burden is thrown on the plaintiff to obviate these presumptions, by proof. It is for the plaintiff to show the circumstances under which the paper came into his possession; that he never assented to its terms, and that there was no such delivery of it, as to make it operative as a binding contract.” This was cited and enforced by the Supreme Court of Wisconsin in the case before referred to. But, upon authority, this whole question is beyond argument. In Van Toll v. The S. E. Railway Co. [supra,) the stipulation was that “the company will not be responsible for any package exceeding the value of £10.” There was no proof that the plaintiff had read the ticket. She had a verdict for £20. The court of common pleas unanimously set it aside, holding that acceptance of the ticket was assent to the terms thereon printed. In Dotty. The W. J. Steam Wav. Co., (supra,) the receipt contained the following clause : “ K"o package whatever, if lost, injured, or stolen, to be deemed of greater value than two hundred dollars.” The plaintiffs proved that such receipt did not come to their knowledge, otherwise than by delivéry to their carman, until the day after the goods were shipped. The- court refused to charge that the liability of the defendants for a total loss by fire was limited to $200. The Court of Appeals said: “ The exceptions to the common law liability being made in the bill of lading, and delivered to the agent of the plaintiffs, must be deemed to have been agreed upon by the parties.” This decides, 1. That acceptance is assent. 2. That a receipt is a bill of lading. The railway ticket cases, in the same court, further illustrate the rule. (24 N. Y. Rep. 182. Id. 215, 223. 25 id. 445.) In The York Co. v. The Central Railroad, (supra,) the judge charged the jury, that “ it is competent for the carrier alone to limit his liability without the engagement of the owner.” 4. It follows from these views that the plaintiff’s objections to the legal character of the receipt, and his offers of evidence to contradict its legal effect, were properly disposed of at the . circuit.
    V. The receipt did not require an internal revenue stamp. It was expressly exempted therefrom. It was an economy of time and labor to affix it, and obviated any necessity for an argument or citations of various statutes, not then in court. If it did not require a stamp, the affixing one was inutile and harmless. If it did require a stamp, as insisted by the plaintiff, then the same law which rendered the stamp necessary, authorized it to be affixed in court. The receipt was dated “ May 4, 1864.” The 163d section of the act of June 30, 1864, (13 U. S. Stat. at Large, 295,) authorized the affixing of the necessary stamps, either in court or out of court. Omne magus, &c. The power to require a stamp implies the power to prescribe the time when the stamp must be affixed; and the force of the plaintiff’s objections to the defendant’s affixing it is not perceived.
   By the Court, Ingraham, J.

Two questions are submitted to us on this case: 1st. Whether a receipt by an express company requires a stamp ; and, 2d. Whether such a receipt, which limits the liability of the express company, is a contract between the parties, protecting the company from liability, except as stated therein, without any proof of knowledge on the part of the holder, of the contents thereof.

First. The objection to the admission of the receipt without a stamp has been examined by the general term of this district, in the case of DeBarre v. The Hope Express Co., (48 Barb. 511.) It was there held that the stamp was not required, and that the exception in the act of 1865, covered such a receipt.

Second. The principal question in the case is as to the extent of the defendant’s liability, and whether an express company can by a notice, or by an exception in a receipt, which is not shown to have come to the knowledge of the shipper or holder, exempt themselves from liability in whole or in part, if the article is lost through the negligence of the express company.

That the defendant’s company is to be regarded as a common carrier, and their responsibility for the safe delivery of property intrusted to them is the same, has been settled by various decisions. (Russell v. Livingston, 19 Barb. 346. Sherman v. Wells, 28 id. 403.) And the same has been distinctly held by the Court of Appeals, in Sweet v. Barney, (23 N. Y. Rep. 335.)

It is equally well settled that a common carrier may by express contract between himself and the party contracting with him, agree to a limitation of his liability. (Parsons v. Monteath, 13 Barb. 353. Moore v. Evans, 14 id. 524. Dorr v. N. J. Steam Navigation Co., 11 N. Y. Rep. 485.) In the latter ease it is said : That a carrier may by express contract restrict his common law liability is now, I think, a well established rule of law.” (Lee v. Marsh, 43 Barb. 102. York Co. v. Central R. R. Co., 3 Wallace U. S. Rep. 111.)

The decisions in this state also have settled that a common carrier cannot relieve himself from liability either in whole or in part by a mere notice indorsed upon the ticket. • or receipt. (Hollister v. Newton, 19 Wend. 234,) in which it was held that the carrier’s notice, even if brought home to his employer, could not he sufficient to infer an express contract. The argument there used is that the carrier is hound to receive and carry goods delivered to him, for whióh duty he receives a compensation. He has no right to prescribe other terms, and a notice, at most, is only a proposal for a special contract, which requires the assent of the other party.

So in Bissell v. N. Y. Central R. R. Co., (25 N. Y. Rep. 442,) Selden, J. says: “ The position appears to be settled, that the companies cannot limit their responsibility by any notice, though expressly brought to the knowledge of those whose persons or whose property they carry, but they may secure such limitation by express contract with those persons.”

These cases all rest on the principle that the carrier receives a consideration for the carriage, and he is bound to carry the goods accordingly; that he cannot by a mere notice relieve himself from that liability; that even proof of its being brought to the knowledge of the owner would not be sufficient to relieve the carrier’s liability, but that an express contract must be proven.

There is another class of cases where the carriage of passengers on free tickets, without compensation, does not involve the application of this strict rule; but that rests on a different principle, and is not applicable to the present case.

[New York General Term,

January 6, 1868.

Geo. G. Barnard, Sutherland and Ingraham, Justices,]

Upon the trial of this case, the justice not only refused to submit to the jury the question whether there was any evidence of a contract between the parties, but expressly held that the contents of the receipt were a binding contract between the parties, and limited the defendant’s liability to $50 and interest, and directed a verdict for the plaintiff for that amount.

In this the learned justice erred, and a new- trial must be ordered.

Verdict set aside and a new trial ordered; costs to abide the event.  