
    Jennings et al. v. Grand Trunk Ry. Co. of Canada.
    
      (Supreme Court, General Term, Fifth Department.
    
    March, 1889.)
    1. Carriers of Goods—Special Contracts—Agents.
    Where, the owner leaves goods with an agent to he shipped, he will he bound by the agent’s contract with the carrier, though the carrier knew who the owner was.
    ■2. Same—Terms Omitted from Contract.
    Where a shipper asked for “the lowest rates on potatoes in car-load lots, ” and accepted the rates thereupon offered by the carrier, all other terms and conditions are left open for future arrangement.
    .8. Same—Limiting Liability—Consideration.
    Where a shipper asked for the “lowest rates ” on certain goods, and accepted the rates offered in reply, it sufficiently appears that there was such a reduction in the regular charges as would support a contract limiting the carrier’s liability.
    
      4. Same—Injury to Goods—Evidence.
    Where it appears that the usual time for transporting certain perishable goods was six days, and the time taken in transporting the goods in question, which were of that character, was about eighteen days, a finding of negligence in the carrier will not be disturbed.
    -5. Same—Connecting Lines.
    Defendant agreed to transport goods to a point beyond its own lines. The contract provided that the carrier should not be liable for delays occurring on the connecting lines. Held, that defendant was not exempt from damages for delays on the connecting lines resulting from the negligence of such connecting lines.
    •6. Same—Loss of Market.
    A provision in a contract of shipment that the carrier “shall not, in any case, or under any circumstances, be liable for loss of market, ” does not exempt the carrier from liability, where the loss of market is caused by its negligence.
    7. Same—Notice of Claim.
    A provision in a contract of shipment that no claim for damages for which the carrier is accountable shall be allowed, unless a written notice of the claim is given within 36 hours after delivery of the goods to the freight agent nearest the place of delivery, does not apply to shipments beyond the carrier’s lines, as well as to shipments to points on its lines, there being no limitation to that effect. Barker, P. J., dissenting.
    Appeal from judgment on report of referee.
    Action by George E. Jennings and others, as assignees of J. H. Shanley & ■Co., against the Grand Trunk Railway of Canada, for alleged negligence in "the transportation of potatoes. One car-load was shipped, at the request of Shanley & Co., by one Joseph E. Du Brule, who signed and delivered to the station agent the following “shipping note:”
    “Grand Trunk Railway Company of Canada.
    “This company will not be responsible for any goods missent, unless they rare consigned to a station on their railway. Rates, weights, and quantities entered on receipts are not binding on company, and will not be acknowledged. All goods going to or coming from the United States will be subject to customs, charges, etc. "
    “Brookville, April 18th, 1881.
    “The Grand Trunk Railway Company of Canada will please receive the undermentioned property, in apparent good order, addressed to order Merchants’ Bank of Canada, East St. Louis, 111. . ■
    “To be sent by the'said company subject to the terms and conditions stated ■above and on the other side, and which are agreed to by this shipping note, ■delivered to said company as the basis upon which their receipt is to be given for said property:
    
      
      
    
    “J". E. Du Brule, Consignor. ”
    The material clauses printed on the back of this paper are referred to in the opinion. They were printed under a heading in large type, which reads, viz.: “General Notice and Conditions of Carriage.” Judgment in favor of plaintiffs for $2,400 was entered on the referee’s report, and defendant appeals.
    Argued before Barker,-P. J., and Dwight and Macomber, JJ.
    
      E. C. -Sprague, for appellant. Martin W. Cook, for respondents,
   Macomber, J.

The opinion of the presiding justice, which contains all the-material facts except as herein mentioned, would lead to an affirmance of the judgment in this ease, save for the twelfth printed condition on the back of the bill of lading. That condition is as follows: “(12) That no claim for damage to, loss of, or detention of, any goods for which this company is accountable, shall be allowed unless notice in writing, and the particulars of the claim for said loss, damage, or detention, are given to the station freight agent nearest to the place of delivery, within thirty-six hours after the goods in respect of which said claim is made are delivered. ” The notice in writing above mentioned was not given within 36 hours to the nearest station freight agent of the defendant, and hence the presiding justice is of the opinion that no recovery can be had by the plaintiffs, except for the one can-load-which was never delivered. I cannot assent to that proposition, under the established facts appearing in this case”. Courts of law should enforce the common-law obligations of common carriers with rigor, and should modify them only with reluctance and upon necessity. Express Co. v. Caldwell, 21 Wall. 266.

The defense set up in the fifth clause of the answer, now relied upon by the defendant, does not in any respect go to the merits of the controversy between the parties, except as it is founded upon this forfeiture clause of the printed conditions indorsed upon the way-bill. But' even this defense is not sufficiently-alleged to enable the defendant to avail itself of the clause in question. The allegation is: “And this defendant alleges, upon information.and belief, that the notices required by said agreements were never- given as thereby required.” There is no allegation that no notice was served within 36 hours-from the time of the delivery of the freight at the end of its journey to the plaintiffs,- except inferentially and argumentatively. It is true that, if the notice was never given, it could not well have been given within 36 hours, but the question-is one of strict defense, and the parties will be held to accurate averments. A plea of the ten-year statute of limitations would cover the-shorter statute of six years, yet it would be insufficient to enable the defendant, under such a plea, to avail himself of the shorter statute in the proof. The objection must be specifically set up. In this instance the defendant has not alleged specifically that the notice required was not given within 36 hours, as 'it ought to be required to do before permitting a defense of this description to discharge the defendant from liabilities. The allegation of the answer is-“that the notices required by said agreements were never given as thereby required. ” This may, and it probably does, refer only to the omission of the plaintiffs’ assignors to give “the particulars of the claim for said loss,” etc., or it may mean that the notice in writing was not given to the station freight agent nearest to the place of delivery, but to some other station agent. At all-events, in setting forth this unconscionable forfeiture of the plaintiffs’ property rights, and the defendant’s consequent exemption from liability, the defendant has not unequivocally placed itself clearly on the 36-hours clause. By not so making the allegation of the breach of the condition, this technical defense was waived. But, furthermore, the answer as it stands is not true, because the claim was in fact presented to the defendant by letter before the action was brought, though not within the 36 hours.

Three of the shipments were made on the 18th day of April, one on the 20th of April, and one on the 26th of April, all in the year 1881. The usual time for transporting potatoes the distance assumed to be carried by the de; fendant was from four to six days. All the damages sustained by the plaintiffs for the negligence of the defendant was by reason of the detention of the several cars, and not by reason of any injury inflicted after their arrival at the destination, except in one instance, where the car was never attempted to be delivered to the plaintiffs. On the 21st day of May, 1881, the plaintiffs’ assignors wrote a letter to the defendant, in which they stated that the potatoes were detained, and had not arrived, and that it was causing them heavy loss, and that they intended to look to some one to pay the damages. Upon the receipt of that letter, and on May 25, 1881, the defendant made this communication to the plaintiffs’ assignors: “Grand Trunk Bailway of Canada", Assistant General Freight Agent’s Office, (Kingston East.) Montreal, May 25,1881. Gentlemen: Your favor of the 21st at hand. I am sorry with regard to the detention of your potatoes. No doubt you are aware that this has arisen through causes over which we had no control, namely, the strike of railway employés in Chicago. Yours, truly, George B. Reeve, A. G. F. A. Messrs. J. H. Shanley & Co., 183 E. Main St., Rochester, N. Y.”

All of these cars of freight, with the exception of the car which was lost, had arrived at their destination at the time of the writing of the letter by •Shanley & Co. to the defendant. That letter, though its contents are doubtless imperfectly given, and owing to the refusal of the defendant to produce it, is broad enough, under the circumstances, to cover all claims to damage which Shanley & Co. had sustained by reason of. the delays in the transportation, and the defendant manifestly so regarded it; for instead of placing its ■denial of liability upon the ground now sought to be set up in its behalf, or ■on the ground of insufficiency of details of the claim, the defendant placed it wholly upon the proposition that it was absolutely absolved from liability by reason of the labor strikes at or near Chicago, which claim was wholly untenable. This, too, was a waiver of the condition.

That a waiver may be made by not insisting upon its fulfillment, or by eir■cumstances, is abundantly established by authority. In the case of Hermann v. Insurance Co., 100 N. Y. 411, 3 N. E. Rep. 341, the policy required notice ■of a loss to be served forthwith on the company. It accepted final proof of loss without objection that this condition had not been complied with, basing its refusal to pay on the ground that the policy had been canceled. It was "held that a strict compliance with the provision had been waived. In the case of Griffey v. Insurance Co., 100 N. Y. 417, 3 N. E. Rep. 309, there was a like provision in the- policy that notice of any loss should be given forthwith, and it was held that, if the holder gave notice without unreasonable delay, he was in time. So in the case of Barnum v. Insurance Co., 97 N. Y. 188, the assured was required by the policy to produce, with the proofs of loss, a certificate of a magistrate or notary public most contiguous to the place of the fire, and not concerned in the loss, stating certain particulars in reference thereto. The certificate accompanying the proofs was of a notary residing within 400 feet of the fire. It appeared, however, that there was another notary who lived nearer. No defect in this respect was pointed out by the defendant until after the commencement of the action. It was held that it was then too late to raise the objection. In the case of Ames v. Insurance Co.; 14 N. Y. 253, it appeared that the proofs of loss were required ■to be furnished within 30 days after the fire, and the company had 90 days thereafter in which either to pay or to object to the sufficiency of the proofs. If objection to the proofs was made, it was competent for the insured to supply any defect by further proof. By the twelfth condition of the policy, any action thereon was required to be brought within six months after the loss. Thus it will be seen that the company could, and in that particular instance did, actually so manipulate the ninth and twelfth conditions printed in its policy that the plaintiff would be required to furnish further proofs of loss so as to be satisfactory to the insurance company, at a time beyond the six months limited by the twelfth clause, provided the company insisted upon the 90 days which was accorded it in which to pay the loss, and this would so tide matters over the short statute of limitations of six months that no action could finally be brought upon the policy. It was held that the action might be maintained after the expiration of the six-months limitation. Moreover, the condition in question, even though not waived and pleaded, is not available to the defendant under the circumstances, as the referee has properly held. It was not intended by the officers of the company to apply, when the agreement of the company was to transport freight so far from the place of ■shipment, and beyond the defendant’s line. The time limited in which to ascertain the particulars of the loss, and place them before the company, was palpably too short to enable the owners to comply therewith, when deliveries were made so far off. The plaintiffs cannot be bound by a clause on the back of the shipping bill which, apparently by inadvertence, had not been struck ■out or adapted to long hauls over other railways than its own, and to deliveries at great distances from its western terminus, under a special contract which was outside of the company’s general business, and against its printed regulations. In the case of Jackson v. Insurance Co., 99 N. Y. 124, 1 N. E. Rep. 539, the plaintiff, who was the receiver of the Patterson Pire Insurance ■Company, brought an action upon a policy of reinsurance taken out by the Patterson Company upon certain property in California. The blank form which was used in the policy of reinsurance was that of the ordinary policy of insurance, and contained the condition that no action should be begun thereon until after an award had been made, as specified in the policy, fixing the amount of the claim, nor unless the action was begun within 12 months after the loss. It was held that the condition had no application to the contract of reinsurance, and was applicable to the perils of a contract of primitive insurance only. This case is sufficient authority for us to hold that the mere circumstance of the existence on the back of a contract of affreightment of a condition does not work a forfeiture in cases where manifestly it was not intended to apply, and where only it remained on account of the inadvertence of parties in striking it out so as to conform to an agreement which was not contemplated by the author of the blank form. I think the judgment was right, and that it should be affirmed.

Dwight, J., concurs.

Barker, P. J.

In disposing of this case, the referee, in effect, held, as matter of fact and of law, that the defendant received and transported the potatoes at the request of the owners, without any discharge or release from the duties or liabilities imposed by law upon common carriers of merchandise; that no special contract was entered into between the shipper and the carrier, except as to the price of transportation. If his conclusions in this respect are sustained by the evidence, then we are unable to see why the judgment should not be affirmed. The defendant contends that at the time the property was delivered for shipment a special contract was entered into between it and the owner, by the terms of which the owner released it from all claim for damages arising from particular causes set out in the written agreement, which ■the referee failed to observe in awarding damages to the plaintiff, and for this reason the judgment'should be reversed. This action relates to five separate and distinct shipments, and it was held by the referee that the defendant failed to perform its agreement as to all of them. , • ■

All the legal questions presented for our consideration- arise upon the facts and circumstances connected with the particular shipment made on the 18th' day of April at Brockville, as those connected with the other-shipments are not materially different.' This car-load was delivered to the defendant by Du Brule, of whom Shanley &' Co. had purchased the same, who, at the time of the delivery, notified the.defendant’s station agent that they were to be shipped to Shanley' & Co.; and thereupon Du Brule filled up and signed with his own-hand, and delivered to the station agent, a blank shipping note, kept and supplied by the defendant to shippers for that purpose, which in substance was a request to defendant to ship said potatoes subject to the terms and conditions printed on the back of said shipping note, which terms were assented fio as the basis upon which the defendant’s bill of lading was delivered. At the same time the station agent delivered to Du Brule a bill of lading, who attached it to his own draft drawn on Shanley & Co., for the balance due-him for the purchase price of the potatoes, which was forwarded for collection, and the same was paid a few days thereafter. Neither party put the bill of lading in evidence on the trial, or proved its contents.

As bearing on the question whether the owner of the property was bound by the conditions of the shipping note delivered to the station agent, the referee made the following finding, viz.: • “Sixth. That said shipping bill was so-made by said Du Brule and delivered to said defendant without the knowledge or consent of said J. H. Shanley & Co., and without request or requirement at the time of said defendant or its .station agent, but in conformity with a general requirement or custom of defendant in the receipt of goods for transportation, known to said Du Brule from the transaction of similar business with said defendant theretofore on his own account. But said J. H. Shanley & Co. then knew it to be the universal custom of railroad companies, so far as their experience went, to require shipping bills to be executed, by the shipper, containing the terms and conditions of shipment upon the delivery of potatoes or similar goods to such companies for transportation.” Upon the facts and circumstances thus narrated, which are the material .ones bearing on the case, the question is presented whether Du Brule had authority, as the agent of the owner, to make this contract fixing the terms and conditions of the defendant’s liability as carrier. As a general rule, the agent to whom the owner intrusts the goods for delivery to the carrier is to be regarded as having authority to stipulate as to the terms of transportation. Redf. Carr. § 52. The owners of the potatoes, after their purchase from Du Brule, left them in his charge for shipment, and the defendant was justified in treating him as the agent of the owner, authorized to make and conclude a contract for the transportation. The circumstance which has been mentioned, that the defendant’s station agent received the property and issued the bill of lading knew at that time that Shanley & Co. were the owners of the property, does not take the case out of the operation of the general rule. Shanley & Co. were not present at the time the shipment was made to act in théir own behalf. The right of the carrier to negotiate for the terms of transportation' with the person in charge of the property is based upon the fact that the owner is absent, and has placed the property in charge of another, and not upon the circumstance that the carrier does not know who the owner of the property is. Du Brule was the only person present with whom the defendant’s agent could make the necessary arrangement, and he stood towards the defendant, for this purpose, in the position of an owner.

The special finding of the referee, that the shipping note signed by Du Brule was delivered to the defendant was without the consent or knowledge of Shanley & Co., we construe as a finding that they gave him no instructions whatever on the subject, and such was the fact, as the evidence discloses. This circumstance, therefore, may be passed as having but little, if any, bearing on the question under consideration.

The plaintiffs contend that, before the property was delivered for shipment, Shanley & Co. had made and concluded a contract with the carrier for the transportation, and that the goods were received under the terms of that arrangement, and for that reason the agreement made by Du Brule was unauthorized, and that the defendant cannot substitute and rely upon the latter contract as determining the rights of the parties. We think the evidence fails to support this contention. Some weeks before the goods were shipped or purchased Shanley & Co. requested the defendant’s agent to give “the lowest rates on potatoes in car-load lots from Brockville [and other points] to-East St. Louis,” to which the agent replied, making rates, and the same was accepted by them. So other terms or conditions for the transportation of the property were agreed upon before shipment, nor were any negotiations had relative to the subject. The other terms and conditions of the contract were left open for future arrangement, if either party should insist upon special terms and conditions different from those imposed by law upon common carriers of merchandise. At the time the goods were delivered the shipper had the option either to insist that the defendant should transport the goods without any special contract for the carriage, or to assent to the terms proposed by the defendant. I am of the opinion, although it is not necessary to pass upon the question in disposing of this case, that the defendant might, at any time before any potatoes were delivered for transportation, have withdrawn the rates offered, and made other rates, if they were such as were demanded of all shippers of the same class of goods from and to the same points.

In view of the whole case, I have reached the conclusion that the goods were shipped under a special contract assented to by the shipper's authorized agent. As indicating Du Brule’s authority and control over the goods, if should be kept in mind that they were consigned to the Merchants’ Bank of Canada by Du Brule, as consignor, and he received the bill of lading, and attached the same to a draft which he drew in his own name on Shanley & Co., and which he procured to be discounted, and used the avails to pay the balance due him for the potatoes, and this draft Shanley & Co. honored on presentation. It thus clearly appears that Du Brule, who signed the shipping note as consignor, had not made a full and unqualified delivery of the potatoes to his vendees at the time the bill of lading was delivered to him. This car-load was consigned to the bank, with instructions in the shipping note to advise Shanley & Co. on the arrival of the goods at the place of destination. An examination of the cases bearing on the question will show that the rule is well established that where the agent of the owner is charged by him with the duty of shipping goods the carrier may regard him as fully authorized to make a valid and binding special contract, such as the owner might have made if he had been personally present, conducting the negotiations. • In Nelson v. Railroad Co., 48 N. Y. 498, the plaintiff purchased of dealers in the city of Ifew York a mirror, and gave them instructions to ship the same to him by railroad to his home in Eulton, in this state. They shipped the same by the defendant’s road, and made a special contract by the terms of which the carrier was exempted from certain liabilities, which covered the injury to the property complained of. It was held that authority to deliver goods to a common carrier for transportation includes all the necessary and usual means of carrying the same into effect; that a consignor of goods to a distant consignee, who is the owner, is the agent of the latter for the purpose of shipping. A ruling to the same effect was made in Squire v. Railroad Co., 98 Mass. 239. In that case the owner of a cargo of live hogs placed them in the charge of an agent or servant, to look after and care for them while in transit from Chicago to Sew York, without any authority specially conferred to make contracts for transportation with any of the connecting lines. When the hogs were loaded on the defendant’s cars at its terminus, near suspension bridge, the agent or servant in charge made a special contract with the company as to the terms or conditions of transportation; and it was held that the contract was binding on the owners, for the reason that the person in charge was the only person with whom the carrier could make the arrangement, and that he stood in the place of the owner for this purpose, although he did not have express authority to make the agreement. A like ruling was made in the case of York Co. v. Railroad, 3 Wall. 113, and many other cases might be cited to the same effect.

Heither party put in evidence the bill of lading, nor was its contents proved on the trial. As it and the shipping note were both executed at the same time, and simultaneously delivered, and related to the same subject-matter, they should be considered as constituting one agreement. We may not assume that the bill of lading contained any provision charging or modifying the terms or conditions contained in the written request to receive and ship the property called in that instrument a shipping note, or anything inconsistent with those provisions and conditions. A bill of lading is the written evidence of a contract of carriage of goods from one place to another for a stipulated price. Covill v. Hill, 4 Denio, 323; Mason v. Lickbarrow, 1 H. Bl. 359. When it was disclosed that a bill of lading had been prepared and delivered to the consignor at the time the goods were shipped, upon the terms proposed by the shipper, it seems reasonable to hold that it was incumbent upon the plaintiff to produce the bill or prove its contents as a part of their •case; but, whether that be so or not, the instrument given in evidence, which was assented to by the carrier, must be regarded as constituting the contract between the parties. Having reached the conclusion that the property was ¡shipped under a special contract, binding on the consignors, we have now to inquire whether the stipulations which it contains releasing the defendant from certain common-law liabilities as carrier is supported by a good consideration. ' In this state the law is well settled that a common carrier of merchandise may by express contract limit his common-law liability, shielding him from damages occasioned by his own negligence or that of his servants. Dorr v. Navigation Co., 11 N. Y. 485; Mynard v. Railroad Co., 71 N. Y. 180; Bissell v. Railroad Co., 25 N. Y. 442; Nicholas v. Railroad Co., 89 N. Y. 370.

Without some proof on the subject, we must assume that, by the laws of Canada, the defendant might for the service it undertook to perform charge a fair and reasonable compensation. This is the rule which prevails in this state. In discussing the question as to what would constitute a good consideration to support a release from those duties and obligations which the law imposes on common carriers, Earl, J., said, in the case of Nelson v. Railroad Co., 48 N. Y. 511: “They must carry for all upon equal terms, charging one no more than another for freight or property delivered under like circumstances. But they are not bound to carry all kinds of property for the same freight. They may charge ordinary rates for some kinds of property exposed in the carriage to ordinary hazards, and extra rates for property exposed to extra hazards. As railroad companies are bound to carry without any contract limiting their liability, their mere agreement to carry does not furnish a consideration for the agreement to limit their liability, nor does their agreement to carry for the price which they would be authorized to charge in case their liability was not limited. But it is a sufficient consideration if they agree to carry for a reduced compensation because their liability is limited. ” In that case it was held that a good consideration was proved to support a release from liability because the contract on its face showed that the railroad company was to carry at “tariff rates,” as the court could not say, in the absence of proof, that “tariff rates” meant the full rate which could be lawfully charged by the defendant for the carriage of the kind of goods transported in that case. In view of all the facts of the case before us, we think that the special rate at which the potatoes were carried, being the “lowest rate” made by the defendant for this class of freight at the particular request of the shipper, was in fact a less rate than the defendant was authorized to charge for the transportation of the potatoes to a point beyond the line of its own road. In York Co. v. Railroad., 3 Wall. 107, it was held that, when there was an agreement limiting the liability of the carrier, it would be presumed, in the absence of proof to the contrary, that it was upon the consideration of a reduced rate for the carriage. It 'appeared in that case that the goods were to be carried at a fixed rate, which was stated in the bill of lading, and the court said that the consideration thus expressed was sufficient to support the entire contract, including the release by the consignor which exempted the carrier from certain risks. We have reached the conclusion, based upon the authorities cited, that the special contract was based upon a good consideration, and is valid and binding alike upon the carrier and the defendant.

The referee found, as a fact, that the transportation of the potatoes was negligently hindered and delayed by the defendant upon its own road, and also upon the connecting road, and in consequence of such delay and the long confinement of the potatoes in the ears they were greatly depreciated in their market value by heating and sprouting. On reading the evidence bearing •on this question, we see no reason for disagreeing with the referee’s conclusion. The usual and customary time for transporting goods of this class, perishable in their nature, was six. days, and the time actually taken was ■eighteen or twenty days. In estimating the plaintiffs’ damages, the referee made allowance for depreciation in quality, and also for decline in the market price of the potatoes, which, upon the shipment now under consideration, with the interest thereon, amounted to the sum of $398.26.

The remaining and important question is, does the release from liability contained in the contract of shipment constitute either a full or partial defense for the losses sustained by the owners for which damages were awarded to the plaintiffs ? It is provided in the contract that the responsibility of the defendant shall terminate when the goods shall have arrived at the place to be reached -on its own road where it connects with other roads, and that the defendant shall not be liable for damages to the property arising from delays which occurred on the connecting roads. The defendant insists that this term of the agreement shields it from so much of the damages which the owner of the goods suffered in consequence of the delays which occurred on the other lines. The defendant could legally contract to carry and deliver the property at places beyond the terminus of its own road, and from the facts and circumstances of this case it is established beyond all dispute that the defendant agreed to carry and deliver the goods at East St. Louis. Conflict v. Railroad Co., 54 N. Y. 500. The connecting lines engaged by the defendant to carry the goods to their destination were the agents of the defendant, and it is liable for their negligence, resulting in damages to the owners. The question of liability for damages, as presented in this case is tobe treated as if the delays all occurred on the defendant’s own road. As the delays occurred in consequence of the defendant’s own negligence, the release from liability does not protect the defendant, as ..the contract does not, by its terms or necessary implication, exempt it from damages arising from its own negligent acts, or those of its agents or servants. The clause of the contract relied upon reads as follows: “(3) 27or will the company be liable for damages occasioned by delays caused by storms, accidents, overpressure of freight, or unavoidable causes, or by the weather, wet, fire, heat, frost, or delay of perishable articles, or from civil commotion.” The cases of Mynard v. Railroad Co., 71 N. Y. 180, and Nicholas v. Railroad Co., 89 N. Y. 370, may be referred to as establishing a rule of construction applicable to the provisions contained in the clause quoted, showing that they do not shield the defendant from the damages arising from its own act of negligence or those of its servants.

The defendant further contends that it is exempt from such damages as the-plaintiff suffered by loss of market on account of delays under another provision of the contract, which provides “that the company shall not, in any case- or under any circumstances, be liable for loss of market.” It is argued by the learned counsel for the defendant, in support of his position, that the rule-of law that a carrier is responsible for negligence unless its contract by its exact terms releases it from the consequences of its negligence, has no application to the measure of damages; that such rule relates to and effects only the liability of the carrier. A common carrier is not liable for loss of market, unless he is guilty of negligence in delaying the transportation. If, however,, he should contract to deliver the freight within a fixed time, he is liable for damages arising from non-delivery within the stipulated period, including loss, of market, although the non-performance did hot occur from any fault of his. own. Harmony v. Bingham, 12 N. Y. 99. Within the rule laid down in the cases already cited, we think the exemption does not include a case where the loss of market arises from a negligent delay in transportation. The question presented should be treated the same as if the only claim for damages was the-one arising from the loss of a market. In such a case it is plain the question-would not be simply one of the measure of damages, but the primary inquiry would be whether the owner has a right of action arising out of the carrier’s-negligence, and, if that should be established, then he might recover as damages the loss sustained by reason of the decline in the market at the place of destination. As the release does not in terms apply to a case where the loss, of market arises from the defendant’s negligence, the contract should be so-construed as to make the release in this respect applicable to cases where the loss of market arises from other causes, such as a failure to deliver within a stipulated time.

The defendant pleaded, in bar of a recovery for the cause of action set out in the complaint, that no written notice was served of any claim for damages, as. required by the twelfth clause printed on the back of-the shipping bill, which is as follows: “ (12) That no claim for damage to, loss of, or detention of any goods for which this company is accountable shall be allowed, unless notice in writing, and the particulars of the claim for said loss, damage, or detention, is given to the station freight agent nearest to the place of delivery, within thirty-six hours after the goods in respect of which said claim is made are delivered. ” The defendant requested the referee to find that no notice in writing making claim for loss, damage, or detention was given to the station agent at the place of delivery within 36 hours after the delivery of the potatoes. This the referee refused to find, and assigned as a reason for his refusal that the clause-requiring the notice to be served did not apply to shipments beyond the terminus of the defendant’s own road. . In this conclusion I think the learned referee erred. In terms the provisions of the clause are not limited in their application to cases where the freight is to be delivered at points on the defendant’s own road, and the purpose of requiring a notice of loss to be served is as applicable to a case where the goods are to be delivered beyond the defendant’s own line as when they are to be delivered at some point on its own road. As before stated, my conclusion is that the contract required the defendant to transfer and deliver the goods to the consignee in the city of St. Louis, and. for this reason I think the condition requiring notice to be given of the loss, when one is claimed should be held to include the place of ultimate destination. The evidence would support a finding that no claim of loss was given by the-consignees, as required by the agreement. In disposing of the questions already considered, an attempt has been made to show that a special contract. was made and entered into, and that the same was valid and binding on the-consignees, and, if we are correct in that conclusion, the provision of the-contract requiring notice of loss to be served must defeat a recovery, if on a new trial it should be found that the requisite notice was not served. This is one of the terms of an entire contract founded upon a good consideration, and it is as obligatory upon the shipper as any other provision of the agreement. In this state it is now well settled that the shipper and carrier may, as between themselves, insert in their agreement for the transportation of freight any condition which does not contravene public policy, or which is not forbidden bylaw. If “the validity of this condition was made to depend upon whether it was a reasonable one or not, I should be inclined to hold that it is. The parties here have made it a matter of specific agreement, based upon a good consideration, and the question of the reasonableness of the stipulation has been placed by the action of the parties beyond our inquiry. In view of the perish^ able character of the property, it was reasonable for the carrier to require that notice of a claim for damages should be served within the time mentioned after the goods were delivered, for the reasons fully stated in the cases of Express Co. v. Caldwell, 21 Wall. 264, and Lewis v. Railroad Co., 5 Hurl. & N. 867. The car-load of potatoes shipped on the 18th of April at Preston, containing 401 bushels of potatoes, the referee found had never been delivered; and that the plaintiffs’ damages, with interest thereon, amounted to $545.60, and I am unable to discover any reason why the judgment should not be affirmed as to that item of damages. The other shipments were made under a contract of the same nature and character of the one we have considered, and the recovery for damages for the losses sustained on each of those shipments by reason of a negligent delay in delivery cannot be sustained, for the reason that no notice of the loss was served. The judgment should be reversed, and a new trial granted before another referee, unless the plaintiffs stipulate to reduce the judgment to the sum of $545.69; and, if such stipulation is served within 30 days then the judgment should be modified accordingly, and, as modified, affirmed, without costs of this appeal to either party.  