87 F. 444 | 2d Cir. | 1898
The only question in the case is whether or not the parties, by their respective agents, agreed to a limitation of liability to $100 for each horse. That such contracts may be made is settled by authority in Hart v. Railroad Co., 112 U. S. 331, 5 Sup. Ct. 151, which holds that:
“Where a contract of the kind signed by the shipper is fairly made, agreeing to a valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation. even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and llie freight he receives, and of protecting himself against extravagant and fanciful valuations.”
The defendant’s contention is that such a contract was made in this case, because the plaintiff’s agent signed the paper by which he requested the railroad company (o forward the property, “subject to the rules and regulations in the freight receipt,” and expressly agreed that they were just and reasonable, thereby making the “freight receipt” a part of the contract signed by him. The difficulty with this contention is that the red-ink clause is practically not a part of the freight receipt. It was not originally printed as a part of such receipt, nor is it inserted in a blank space left in such receipt for the purpose. By reason of Its being superimposed, as it is, at right angles to the text of the receipt, and in one corner of the paper, it is no more a part of the contract than was the statement on (lie back of the paper receipt in Railroad Co. v. Manufacturing Co., 16 Wall. 318, where also the statement on the hack was referred to in the body of the receipt. In legal effect, it was merely a rule or regulation which did not bind the plain - (iff, unless so brought to the knowledge of Ms agent as to imply his assent upon his acceptance of the receipt. The Majestic, 166 U. S. 375, 17 Sup. Ct. 597. Indeed, a person taking such a receipt would1 seem to be less likely to notice the clause where it is than if it were printed on the back. The question wheiher or not such notice was brought home to the knowledge of plaintiff's agent was one for the jury upon
The'judgment of the circuit court is affirmed.
