| Md. | Jun 4, 1875
delivered the opinion of the Court.
The plaintiffs brought their action for the recovery of damages for alleged neglect of the defendants, in the transportation of a quantity of corn, contracted to be moved from Chicago to Baltimore.
In the trial before the Superior Court of Baltimore City, two bills of exception were taken hy the plaintiffs.
In the first, exception was taken to the admission of certain receipts offered in evidence, without the qualification proposed by the plaintiffs — to the refusal of the plaintiffs’ fourth, fifth and sixth prayers, and the granting of defendant’s third prayer.
In the second, exception was taken to the refusal of the Court to permit plaintiffs’ counsel to argue the case before the jury, the Court determining there was not sufficient evidence to authorize a verdict for the plaintiffs.
The receipt for the transportation of the corn, or bill of lading, as it is called, constituted the contract between the
It contains a number of stipulations and conditions, and is mostly a printed form. Its date — the rates of transportation for the corn — order of Eumsey & Co., agents of the plaintiffs at Chicago — names of the plaintiffs’ consignees at Baltimore, and the number of bushels of corn being in manuscript.
The printed part contains the language, “the following packages, (contents unknown,) in apparent good condition.”
Afterwards, under the word “articles” in print, the number of bushels of corn is stated in writing.
One of its printed conditions provides, “ that the defendants are not to be held accountable for any damage or deficiency in packages, after the same shall have been receipted for in good order by consignees, or their agent at the point of delivery.”
The defendants delivered the corn to certain agents of the plaintiffs, who signed receipts of the following tenor : “Beceived from the Northern Central Eailway Company, the following articles in good order” — then follow the number of bushels of corn — other receipts add the word “condition.”
In reference to the effect of these receipts under the contract and its meaning in relation thereto, the discussion of their respective counsel was mainly directed.
The defendants contending, that the corn was to be understood as embraced under the language, “ the following packages, (contents unknown,) in apparent good condition ; ” and that the condition as to claim “ for damage or deficiency in packages, after receipted for in good order by consignees or their agents,” operated to preclude the plaintiffs from recovery.
Such a construction the plaintiffs denied, insisting that was not the meaning of the contract, but that the term
Construing the entire instrument with its printed and written portions, as constituting the contract between the parties, the meaning as to any particular condition or stipulation must he ascertained.
However terms may he understood in their ordinary sense, if the parties have attached other or unusual or arbitrary meaning to them, to he derived from their fair interpretation in the contract, they have the right so to employ them.
But to accomplish such purpose, and to vary the common understanding, the meaning ought to he plain and free from reasonable doubt.
This contract, using the words “the following packages, (contents unknown,) in apparent good condition,” might and probably did mean to include articles referred to in the subsequent condition, under the designation of “packages ; ” hut it did not import, that all articles, goods, ■merchandise and property, of whatever description, were to he classed and defined as “packages, (contents unknown,) in apparent good condition.”
The contract, afterwards, specifying in writing, “corn” under the word “ articles ” in print, might very well he understood, as acknowledging the receipt of “corn” for transportation, amongst other articles.
There is another condition in the contract, referring to grain carried in hulk, specially.
“Packages (contents unknown,) in apparent good condition,” would ordinarily apply to packages, as the contract itself defines them — contents unknown, equivalent to unknown articles, and from any thing that appeared outside in good condition. This could not apply to corn shipped in hulk, in any respect. It is not a reasonable construction to put upon the contract that the parties meant to describe the corn as a “package, contents un
The bill of lading makes use of various terms in describing the articles to be transported, and it does not undertake to use the term “packages,” to define all descriptions of property.
It is quite evident, that the company intended by the condition in question, to protect itself from any damage or deficiency in “any package where the contents were unknown,” after the same had been receipted for in good order, but that it was designed to be applied to the “corn” in question, or that it can fairly admit of such meaning, is without .foundation.
Common carriers may, by special contract, limit their liability, as recognized by the common law, where there seems to be reason and justice to sustain their exception. Bankard vs. B. & O. R. R., 34 Md., 197; Railroad Company vs. Lockwood, 17 Wallace, 357.
But where such is the case, it ought to be by clear and distinct terms. Here the defendants had prepared the printed form of the contract, and it was a duty they owed to themselves, if they intended to have such an article as corn embraced by the condition referring to packages receipted for, so as to bar the plaintiffs from recovery after-wards, and thus modified their ordinary liability; to have used plain and unequivocal terms for that purpose.
If such was their design by this contract, they hav e failed to use appropriate language to that effect.
Under this view of the terms and conditions of the contract, the receipts of the agents did not conclude the plaintiffs from a recovery; their motion and prayer, and their fourth and sixth prayers as to the effect of the receipts, ought to have been granted, and the third prayer of the defendants refused.
We think the plaintiffs have no cause to complain of the modification of their fifth prayer.
The contract between the parties was in writing, and if the plaintiffs were entitled to recover damages, by reason of its non-performance by the defendants, there was no occasion to resort to parol explanation, or to any course of dealing between the parties, to enable the jury to ascertain the extent of the damage.
If any loss or damage occurred to the plaintiffs, the contract stipulated, it was to be computed at the value or cost of the goods at the place and time of shipment.
The Court in its modification having announced that it had ruled, that the measure of damages by the terms of the contract, was the whole loss of the plaintiffs computed upon the basis of the cost of the corn in Chicago, and the expenses otherwise attendant upon the transaction, allowed the plaintiffs, the opportunity and ample latitude to introduce evidence of all the loss they may have sustained, including the measurement of the corn, as that would be an item, in “the expenses otherwise attendant upon the transaction.”
Prom the view we have taken of the case, it is unnecessary to decide the point made in the second exception.
Judgment reversed, and new trial ordered.