
    COURT OF APPEALS.
    Ira Babcock, appellant, agt. The Lake Shore and Michigan Southern Railway Company, respondent.
    
      Argued May 21, 1872.
    
      Decided May 27, 1872.
    Where the owner of freight; which is to be carried by several railroad companies before it reaches its final destination, enters into a special contract with the railroad company from where it starts, to carry the freight, for a specified price to a certain station-, which is the termination of the route of said railroad, and thereto be delivered to another railroad as a connecting line, the owner, in consideration of the reduced price on the freight, agreeing to assume the risk of fire and other contingencies, which risk, and the other stipulations, are made applicable, by the general printed form of the contract, to all the other companies, is not a through contrac£, which enables the companies after the first, to avail themselves of the owner’s sprecial agreement with, the first.
    The latter companies take the freight under the liabiliy of common carriers, and if the freight is destroyed by fire while in the possession of one of them it is liable as a common carrier.
    It must however appear to be clear by the special contract of the owner with the first railroad, that it was intended to cover only the route of that road. And in construing such a contract, the printed form must give way to the written word where it is inconsistent with* the latter.
    G. W. Cothran, for appellant.
    
    This is an appeal from a judgment of tne general term of the supreme court, sitting in the fourth judicial department, affirming a judgment for the defendant entered on decison of the court, without a jury.
    On November 14, 1867, the plaintiff shipped fifty-six barrels of refined petroleum, at Oil City, in the state of Pennsylvania, by the Atlantic & Great Western Railway Company, under an agreement.
    
      That company carried the petroleum to Cony, also a station on its road, and there delivered it to the Buffalo & Pittsburgh Railroad Company, which company carried it to Brocton, in this state, and delivered it to the defendant. While in the possession of the defendant it was destroyed-by fire.
    The price of transportation of a car of petroleum from Oil City, by the road of the Atlantic & Great Western Railroad Company, on Novémber 14, 1867, was $25 the price stipulated in the contract.
    The facts were all agreed upon, and are set forth in the case, from folio 59 to folio 67. No other evidence was given, or fact agreed upon, than what appeal's between those folios.
    The case was tried before Justice Barker, without a jury, at the June (1870) circuit, held in Erie county, and he rendered judgment for the defendant. Judgment was accordingly entered August 17, 1870, and was affirmed at general term, July 26, 1871.
    The main question in this case arises upon the face of this special contract.
    I. It is contrary to sound public policy to permit a common carrier to restrict its common law liability by contract (Pennsylvania R.R. Co. agt. Henderson, Pa., 315).
    I make this point with the full knowlege that there are authorities in this state tending to establish a contrary. doctrine ; but I do not know but what this court desire to depart from that doctrine and return to sound principles, well established and long adhered to before the great power of railroad companies had been fully developed.
    II. Should the court not deem this the appropriate time to make a departure, but should feel constrained to follow bad precedents—established by a misconception of the authorities relied upon, as will readily appear by an examination of these cases—I still insist that to secure exemption from liability by special contract, at least two things must occur:
    1. The exemption must be secured by clear and unambigious or doubtful language. Such exemption being an innovation upon the common law rules and rights of the plaintiff) if there be any doubt about whether the exemption is" secured, that doubt will be resolved in favor of the plaintiff (French agt. Buffalo, N. Y. & Erie R.R. Co., 4 Keyes, 108; Steam Navigation Co. agt. Merchants' Bank, 6 How. U. S., 344; Wells agt. Steam Navigation Co., 8 N. Y., 375).
    2. There must be a consideration to maintain a contract securing such exemption.
    There was no consideration whatever in this case, as I will show under a subsequent point.
    III. The bill of lading is a contract for the transportation of car 1848, and its cargo from Oil City to Corry only.
    1. It in express terms makes Corry the place of performance.
    . The fact that a station short of the .ultimate place of delivery was written in a printed blank is conclusive evidence that its operation was limited to the station thus designated.
    More especially is this so, when as in this case, had Corry been .omitted and the blank space remained, it would have been a contract for transportation from Oil City to Albany.
    It being competent for parties to make such contracts as they please, (so long as no rule of law is violated,) it was competent for those parties to make a contract for transportation from Oil City to Corry; and that it precisely what they did make.
    The mention of “ connecting roads,” in the printed form simply proves that this contract was made on the company’s usual blank which was susceptible of being so filled up as to extend its provisions to such <l connecting roads” or not, as the A. & G. W. R.K Co. choose to make it.
    And the fact that such a blank space,was left goes to show that the A. & G. W. R.R. Co. was in the habit of limiting or extending the application of its contracts as it deemed meet; and that the termination thereof at Corry in this instance was designed.
    ' The special contract in this case differs widely from that in the case of The Manhattan Oil Co. agt. The Camden. & Amboy R.R. Co., (5 Abb. N. S., 289, S. C., 52 Barb., 72).
    -In that case the agreement in terms extended to the whole route.
    2. Again: The consideration agreed upon and stipulated in it is but $25, “ the regular and customary price of transportation of freight by the A. & G. W. R.R. Co. from Oil City to Corry.” ■
    Had the Atlantic & Great Western' R.R. Co. intended this as a bill of lading from Oil City to Albany, the price of carriage between those two points would have been fixed instead of the price of carriage from Oil City to Corry.
    IY. There was no consideration for any exemption from the common law liability as common carriers of the Atlantic & Great Western Railway Company or any connecting road.
    The case shows that “ at the time of receiving said oil and packages, the regular and customary price of the transportaot freight upon said railroad of the Atlantic & Great Western Railway Company from Oil .City aforesaid, to Corry, wras twenty-five dollars per car.”
    This applies generally to all classes of freight.
    There being no consideration for the exeriiption from common law liability sought to be secured by this contract, the agreement in so far as the exemption goes is inoperative.
    To relieve a common carrier from its legal responsibilities, there must be a consideration for the exemption. There must be mutuality to uphold the agreement (Bissell agt. N. Y. Central R R. Co., 25 N. Y., 442).
    The Atlantic & Great Western Railway Company having failed to secure a restriction of its common law liability, it follows that the contract can furnish no immunity to the defendant for its omission to deliver the oil at Buffalo, even if the defendant could avail itself of its provisions.
    
      Y. The opinion of the general term certainly throws no light upon, this case. The sole authority cited is as foreign to tins case as it is possible to find a case. There is neither a fact nor a principle in common between the two cases.
    The whole of this case resolves itself down into this proposition : The Atlantic & Great Western Railway Com-
    pany made a contract to carry this oil from Oil City to Corry. It performed that contract. The defendant received the oil from The Buffalo, Corry & Pittsburgh Railroad Company, and while in its possession, as a common carrier, the oil was-destroyed.
    Can the deféndant claim exemption from liability under a contract to which it was in no way a party ? I say it cannot; and that this judgment should be reverse i and judgment ordered for the plaintiff for the value of the oil agreed upon.
    A. P. Lanning, for respondent.
    
    This is an appeal from a judgment of the general term, in the fourth department, affirming a judgment entered on the decision • of the court below, on a trial without a jury.
    The action was brought to recover the value of fifty-six barrels of refined petroleum oil, casually destroyed by fire at Brocton, N. Y., and while in the possession of the defendant as a common earner.
    The oil in question was delivered to the Atlantic & Great Western Railway Company, at Oil city, in the state of Penn- ■ sylvania, November 14, 1869, to be transported thence to Albany, in the state of New York, via Corry, Brocton and Buffalo, over its own and connecting railroads. The Atlantic & Great Western Railway extending from Oil City to Corry, the Buffalo, Corry & Pittsburgh Railroad extending from Corry to Brocton, a station upon the- line of the Buffalo & Erie Railroad, the said Buffalo and Erie Railroad extending from Erie to Buffalo and passing through Brocton aforesaid,. and the New York Central Railroad extending from Buffalo to Albany, constituted the line of connecting railroads over which the said, oil was to go to Albany.
    A special contract for the transportation of this oil was made with the Atlantic & Great Western Railway Company at Oil City, at the time of shipment, by which special contract the Atlantic & Great Western Railway Company and the other connecting railroad companies agreed to transport the oil to Albany, with the express condition that the owner or shipper assumed all risks of damage from fire while the oil was in transit, or at the depots or stations of any of the companies over whose line of road it might be transported.
    The railroad companies were released from liability for-damage by fire in consideration of a reduction in the rates for transporting such oil.
    Under such agreement the Atlantic & Great Western Railway Company carried said oil from Oil City to Corry, and there delivered the same to the Buffalo, Corry &. Pittsburgh Railroad Qompany, which latter company carried said oil from Corry" to Brocton, and there delivered the same to the Buffalo & Erie Railroad Company, to be by it carried under and in pursuance of said agreement upon its -said railroad from Brocton to Buffalo, and there to be delivered to the' New York Central Railroad Company.
    After said oil was so delivered to the Buffalo & Erie Railroad Company, and while in its possession at Brocton, the same was casually burned up. The value of the oil was $1,200.
    The defendant became a corporation by the consolidation of the Buffalo and Erie Railroad Company with other railroad companies prior to the commencement of this action.
    The court decided that by reason of said special agreement, the defendant was not liable to -pay for the oil thus casually destroyed by fire, and directed a judgment against the plaintiff.
    To this decision the plaintiff’s counsel excepted.
    Thereupon a judgment was duly entered against the plaintiff, from which he appealed to the general term of the supreme court, and by which court said judgment was affirmed.
    From that judgment this appeal is brought.
    The question presented is as to fhe liability of the defendant for the loss by fire under the special agreement set forth in the case and the facts found by the court.
    I. A common carrier may, by special agreement with the owner or shipper, limit its liability for damages to property-delivered to such carrier for transportation (Steinweg agt. Erie R.R., 43 N. Y., 123 ; French agt. The Buffalo, New York, and Erie R.R. Co., 4 Keyes, 108; Dorr agt. The New Jersey Steam Navigation Co., 1 Kernan, 485).
    And it may by special agreement secure such exemption from liability for injuries arising from the negligence of its servants (Bissell agt. The New York Central R.R. Co., 25 N. Y., 442)
    In the case at bar the loss was casual.
    There was no negligence.
    II. By the terms of this special contract the plaintiff assumed the risk of fire, and released all the connecting roads from liability to pay any damage by reason of the casual burning of said oil.
    It is found as a fact by the court, that the oil was delivered to the Buffalo and Erie Railroad Company at Brocton, to be ■carried under and in pursuance of said agreement over its .said railroad to Buffalo.
    The presumption is that the proof warranted such finding, and the case does not purport to contain all the evidence given upon the trial.
    Nor will this court look beyond the facts found (Bergen agt. Wemple, 30 N. Y., 319).
    III. The written contract recites a good and valid consideration for the exemption, and the connecting roads are entitled to stand upon the recitals therein without inquiry, and are protected by them as against this plaintiff.
    Nor does the finding of the court that $25 per car, was the customary price for the transportation of oil from Oil City to Corry necessarily conflict with the recitals in the written contract.
    The defendant is, therefore, entitled to the benefit of the stipulations contained in such special contract (Manhattan Oil Co. agt. Cam. & Am. R.R. Co., 52 Barb., 72; Maghee agt. The Cam. & Am. R.R. Trans. Co., 45 N. Y., 514).
    IY. The judgment should be affirmed with costs.
   Allen, J.

—To exempt the defendant the successor in liability to the Buffalo & Erie Railroad Company from the common law responsibility of common carriers extending to all losses, except those resulting from the act of God, or the public enemies, it must appear that the oil of the plaintiff was at the time of its destruction in the possession of the "Buffalo & Erie Railroad Company for- transportation under a special contract restricting the liability of the carrier, made by, and with the plaintiff or some one authorized to act in his behalf.

The contract with the Atlantic & Great Western Railway Company was special in its terms, and by it the liabilities of the carrier were greatly restricted, and a loss by fire was excepted from the risks of the carrier, and if that was a through contract, that is, a contract for the carriage of the property to and a delivery of it at Albany its ultimate destination, each carrier in the course of its transit including the Buffalo & Erie Railroad Company was entitled to the benefit of the exemptions from liability secured by it. It would be regarded as made for the benefit of all who.should undertake the carriage of the goods upon the terms and conditions prescribed by it. If it was not a through contract then the Buffalo & Erie Railroad Company received the goods as common carriers, and are liable as such for all losses not within the recognized exceptions, that is, except those which were inevitable or occasioned by public enemies.

If the first carrier, the Atlantic & Great Western Railway Company, only undertook for the carriage of the oil to Corry for an agreed compensation, and’the delivery at that place to another carrier, there was no authority resulting from the relation, or the contract between that company and the plaintiff, in the company to enter into a special contract in behalf of the plaintiff with the next carrier at Corry, to limit and restrict the liability of such' carrier in any respect. There was no agency created, the whole duty of the Atlantic & Great Western Railway Company was that^of a carrier, and terminated with the delivery of the goods to the next carrier, and the common law liability of the carrier receiving the goods attached at once, and by necessary implication, upon their receipt.

The goods were received by the Atlantic & Great Western Railway Company at Oil City in Pennsylvania, addressed to J. W. 0. & Co., Albany, New York, and had they been received without a special contract, a contract would not have been implied on the part of the railway company to cany the goods, or provide for their carriage beyond the terminus of its road.

Its whole duty would have been performed by transporting them to the extent of its own route and"delivering them to the next connecting carrier, that is, the railway company would have been liable as a carrier over" its own road, and as forwarder from the terminus of its line. This is the recognized rule in this and other states, although it is otherwise in England (Root agt. The Great Western R.R. Co., 45 N. Y., 514, and cases cited by Rapallo, J.; Redfield on Carriers, § 181, and cases cited in note 9). But the goods were received by the Atlantic & Great Western Railway Company under a special contract and upon the interpretation of that contract, and the effect to be given to it, the decision of this case hinges.

In the agreement, the goods were described as “ 56 bbls R. Oil, car 1848,” and in the margin il marked. J. W. O. & Co., J. W. Osborne & Co., Albany, N. Y.”

The mark or direction of the property was given to identify and distinguish it from- other property of the same character, and was not inserted as a part of the agreement, and from it a contract to carry to Albany would not be implied. The 'agreement was by “this (the Atlantic & Great Western Railway) Company and connecting roads,” to deliver the property at Corry station—which was the terminus of the road of that company upon payment of freight and charges thereon.. The freight was specified at twenty-five dollars per car.

This was the freight to Corry, and no rate was agreed upon or specified for transportation beyond that place.

By the agreement the plaintiff “ in consideration of the reduced rate given and specified above, for the transportation of petroleum,” assumed certain risks, including that by which the property was destroyed, “ while in transit, or at the depots or stations of any of the companies whose lines of road it may be transported upon or over.”

The plaintiff also, in consideration of having the petroleum transported at such reduced rate, released the Atlantic & Great Western Railway Company, “and all other companies over whose lines of road it may pass, from all claim for loss or damages by fire, &c.”

The agreement was made by filling up a printed form, adapted to a contract for the transportation of goods beyond the route of the contracting carrier, and over the lines of other and connecting roads to distant places. The parties merely inserted in writing the date and place of shipment, the name of the owner, the description of the property, the freight, and the place of delivery (Corry station). Thecommencement and termination of the responsibility of the carrier (the Atlantic & Great Western Railroad Company) were expressed clearly and distinctly in the written parts of the contract.

The goods were not lost or destroyed between the place of the receipt and Corry, nor until after they had left Corry. in charge of other carriers, and had come into the possession of the Buffalo & Erie Railroad Company, in the course of their transit to Albany.

The contract was for the carriage of the oil to Corry, and only so much of the printed matter of the blank form used as is consistent with and appropriate to that contract, is of any effect. The intent of the contracting parties is to be gathered from the entire instrument; the written part controlling when that and the printed are in conflict, and the latter to be rejected when incompatible with or inappropriate to the intent of the' parties as clearly indicated by the written portion.

The printed form is very general and contains provisions adapted to contracts differing essentially from this, some of which are not adapted to a contract for the carriage of goods wholly within the limits of the contracting carrier’s line of road, and such parts as are inapplicable must be rejected as surplusage, and the written portion of the agreement prevail (Leeds agt. Mechanics’ Ins. Co., 4 Seld., 351 ; Harper agt. Albany Mutual Ins. Co., 17 N. Y., 194).

The limitation of the carrier’s liability by the contract is necessarily confined to the service contracted for, and the earners who were parties to it. •

Carriers who are not named in a contract for the carnage of goods, and who are not formal parties to it, may under some circumstances have the benefit of it.

Suca is the case when a contract is made by one of several carrien upon connecting lines or routes for the carriage of property over the several routes for an agreed price, by authorby express or implied of all the carriers.

So too, in the absence of any authority in advance, or any usage fiom which an authority might be inferred, a contract by one carrier, for the transportation of goods over his own and comecting lines, adopted and acted upon by the other carriers, would enure to the benefit of all, thus ratifying it, and perfuming service under it. But in such, and the like ¿ases, the contract has respect to, and provides for the services of the carriers upon the connecting routes (Magee agt. The Camden & Amboy R.R. & Trans. Co., 45 N. Y., 514, and Lamb agt. The Same, 46 N. Y., 272), are in point and illustrate the rule.

There was no agreement here for the carriage of the oil beyond Corry. . No rate of freight agreed upon to any other point, and the carrier was entitled to receive the freight earned, twenty-five dollars per car on delivery of the oil at that place.

There was no consideration for an agreement by the plaintiff to relieve the carriers, who should hereafter receive the property for transportation, from the common law liabilities, and no such agreement was made. It is claimed that the finding by the judge by whom the case was tried, that the Buffalo & Erie Railroad Company received the property under and in pursuance of said agreement upon its said railroad from Brocton to Buffalo,” is conclusive as a finding of fact, and entitles the defendant absolutely to the benefit of the stipulations of the contract.

. The answer is that the transportation from Brocton to Buffalo ' is not within the limits of the contract, and it was simply immpossible that goods could be carried between these places in pursuance of a contract expressly providing for an entirely different transportation, between two other places on a different route. • While twenty-five dollars per car freight, might have been a reasonable, or a reduced rate, for transportation from Oil City to Corry, it may have been an entirely inadequate, or an exhorbitant rate for transporting the same property from Corry to Brocton, or from Brocton to Buffalo, or Búfalo to Albany. It is certainly improbable that the same freight was to be the compensation to each of the railroad companies by whom the oil should be carried in its transit to Albany.The contract was not intended as a through contrac;. The plaintiff had no claim under it either against the Atlantic & Great Western Railway Company, or any of the lonnect- • ing roads for the carriage of the goods beyond Corry, and it necessarily follows that its stipulations did not extend to effect the carriage beyond that place.

The Camden & Amboy Railroad and Transportation Company were held liable as common carriers under a contract somewhat like this, made with the Pennsylvania Railroad Company under which the goods were transported by the latter company to Philadelphia, and there delivered to the former company (C. & A. R.R. and T. Co. agt. Forsyth, 61 Penn. 81; Bristol and Exeter R.R. Co. agt. Cummings, 5 H. and Ct., 969), merely held carrying out the doctrine of Muschamp agt. The Lancaster & Preston Junction R.R. Co., (8 M. & W., 421), which has not been followed in this state, that the contract of carriage in that case was a through contract made by the Great Western Railway Company for the carriage of the goods to their ultimate destination and that the contracting earner was solely liable for the loss of the goods in transit, although they were lost while in course of transportation by the defendants who received them from the first carrier at terminus of its road for transportation to the place to which they were directed. This case would not be followed with us, but each carrier would be held responsible for a loss or damage to the goods while in his custody, and the only question would be as to the extent of his liability, and whether he was entitled to the benefit of any stipulation in the contract made with the first carrier.

The defendant upon the ease" made, and facts found by the judge at the trial was subject to all the common law liabilities of carriers and the stipulations of the contract with the Atlantic & Great Western Railway Company, did not extend to the transportation of the goods by the defendant. It- is not necessary to consider at this time, the liability of the parties, in case it should appear that the oil was being carried at a reduced rate of freight.

The judgment must be reversed, and a new trial granted.  