Perrin v. United States Express Co.

78 N.J.L. 515 | N.J. | 1909

The opinion of the court was delivered by

Voorhees, J.

The stress of attack upon the judgment brought here by this writ of error is against the refusal of the trial court to direct the jury to render a verdict against the defendant for $51.33, the amount tendered to the plaintiff, representing the express charges paid by the plaintiff, and $50 the amount to which the defendant’s liability was limited by the terms of the written express receipt.

The plaintiffs resist this attack by saying that the receipt is not a contract, that it did not become such by its mere reception by them without their assent, citing Hayes v. Adams Express Co., 44 Vroom 105, affirmed, 45 Id. 537, and further, that the burden lies upon the defendant to prove such assent. In Russell v. Erie Railroad, 41 Id. 808, we held that a carrier might lawfully contract specially to limit its common law liability for any loss, except such, as might' arise by its negligence or misfeasance, and in Atkinson v. New York Transfer Co., 47 Id. 608, we also held in the language of the learned Chief Justice delivering the opinion of this court: “The carrier is entitled to be compensated for his services in proportion to the value of the article consigned and the consequent risk assumed by him. The shipper is entitled'to take the benefit of a lower rate, if he desires to do so, by placing a value upon his goods for the purpose of their shipment, below their' actual' worth. Such, a stipulation stands as if the carrier had asked the value of the goods shipped, and had been told b3r the consignor that it was the sum named in the contract. * * * It exacts from the carrier the measure of care due to the value agreed on, and is, we think, a proper and lawful mode of securing a due proportion between the amount for which the carrier can be held responsible, and the charges received by it as a consideration for the safe transportation of the goods shipped.”

This case did not go to the length that the courts of many of our sister states have gone in holding that the shipper receiving a bill of lading is conclusively presumed to have read it and acquiesced in its terms, in the absence of fraud, imposition and mistake. (See 6 Cyc., where the cases are collected.) The case under review does not call for a decision on that point. The Atkinson ease, supra, however, did declare that if a shipper has knowledge that the express charges are based upon a value placed on the goods by him which is less than their real value, and is specified in the re^ ceipt, coupled with a clause limiting the carrier’s„ liability to the specified amount, he may not, having accepted such receipt in silence, afterwards repudiate that he assented to the valuation and recover the full amount of his loss.

The case in hand, however, is one where the plaintiffs must be held to have drawn the contract, and by their own language to have limited the liability of the carrier, to which it has assented. The plaintiffs had knowledge of the entire contents of the receipt, for they had by their agents in charge of shipping the goods prepared it and tendered it to the defendant, contrary to the general course of such transactions, where customarily the receipt is filled out by the carrier and tendered to the shipper.

Although it was written upon blanks furnished, by the carrier, yet these blanks had been in the possession of the shippers and had been uniformly used and filled out by them in their usual course oE shipping goods for more than a year previous to the transaction in question, and were tendered by thorn to the defendant, and so had been adopted by the plaintiffs as embodying their own contract.

In the absence of evidence or circumstances tending to show the contrary, a person who personally, or by Ms duly-authorized agent, prepares a writing, will be deemed to know tiie contents of such writing. And so here the contents of the receipt jn'cparecl and furnished by the plaintiffs by their agent accustomed to prepare such receipts and tendered by the plaintiffs to the defendant for signature will be presumed to have been known by the plaintiffs. They have not attempted to rebut this presumption.

Here, then, we have essentially a case of the shipper limiting the liability of the carrier, not the usual one where the carrier has sought to do so. The plaintiffs themselves incorporated in it” a provision that the goods covered by it would be valued at $50, unless the true value was stated therein; that the liability of the company was limited to $50, unless a greater value was stated in the receipt; and that the party accepting the receipt agreed to the conditions therein, and having thereafter at the time of making the shipment received the receipt from the carrier and retained it without objection with such knowledge, the plaintiffs must be held to be bound by its terms, as a contract put forward by themselves.

The court should, therefore, have directed a verdict for the plaintiff for the amount of the sum tendered.

The judgment of the Supreme Court is reversed, and a venire de novo awarded.

For affirmance — None.

For reversal — The Chief Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Congdon, JJ. 14.