Durgin v. Am. Exp. Co.

• Decision Date: 25 July 1890
• Citation: 20 A. 328,66 N.H. 277
• Parties: DURGIN v. AMERICAN EXP. CO.
• Court: New Hampshire Supreme Court

20 A. 328

66 N.H. 277

DURGIN

v. AMERICAN EXP. CO.

Supreme Court of New Hampshire. Merrimack.

July 25, 1890.

Case, to recover the value of merchandise which the defendants as common carriers received from the plaintiff, and did not deliver to the consignee. On the 20th day of January, 1888, M. E. Hagerty, the defendant's agent and servant, received from the plaintiff a box weighing 37 pounds, and containing silver-ware of the value of $680.20, to be carried by the defendants to the city of New York, and there delivered to Theodore B Starr. There was in the plaintiff's possession a book of blank receipts furnished him by the defendants, to be filled up and signed by the defendants on the delivery of the goods to them for carriage. At the time of the reception of the box in question, one of these receipts was signed and delivered to the plaintiff by the defendant's agent. The printed portion of the receipt contains the following, among other stipulations: "It is further agreed that this company is not to be held liable or responsible for any loss of or damage to said property, or any part thereof, from any cause whatever, unless, in every case, the said loss or damage be proved to have occurred from the fraud or gross negligence of said company, or their servants; nor in any event shall this company be held liable or responsible, nor shall any demand be made upon them, beyond the sum of fifty dollars, at which sum said property is hereby valued, unless the just and true value thereof is stated herein." The value of the box and contents was not stated, nor was any inquiry concerning its value made by the defendants or their agent, and neither the defendants nor their agent had knowledge of the value thereof. The sum to be charged for carrying the box was not mentioned, and nocharge therefor was paid by the plaintiff, it being understood that the express charges were to be paid by the consignee upon delivery. The goods were never delivered, but were lost or stolen. The price fixed by the defendants for the carriage of this box was 75 cents, but the plaintiff was not informed what the charge in this particular instance would be. If the actual value of the goods had been stated, the regular express charge would have been $3.75. The plaintiff is, and for many years has been, a manufacturer of and dealer in silver-ware, at Concord, and during that time the defendant company has received from him, to be carried by express, thousands of packages and boxes, the value of which in many instances was more than $50, giving receipts like that given on this occasion, in which the value of the box or package was not inserted, and concerning which no information was given or inquiry made.

W. L. Foster and Chase & Streeter, for plaintiff. H. Robinson, for defendants.

CLARK, J. Common carriers may limit their common-law liability by express contract against risks not arising from their own negligence. Merrill v. Express Co., 62 N. H. 514; Rand v. Transportation Co., 59 N. H. 363; Barter v. Wheeler, 49 N. H. 9, 30; Moses v. Railroad Co., 24 N. H. 71, 90. The receipt, signed by the defendants' agent and servant at the time of the delivery of the package, was taken by the plaintiff as evidence of the fact and purpose of its delivery, and of the terms and conditions on which the defendants received it. The receipt was contained in a book of blank receipts previously furnished by the defendants for the use of the plaintiff, and the written portions were in his handwriting, and the law presumes that the contents were known to him. The plaintiff understood it to be the shipping contract, and, in the absence of fraud, by receiving it without objection, he is conclusively presumed to assent to its conditions. Merrill v. Express Co., 62 N. H. 514; Grace v. Adams, 100 Mass. 505. It is now generally held that the responsibility imposed on the carrier of goods by the common law may be restricted and qualified by express stipulation, where such stipulation is just and reasonable; and a stipulation that the carrier shall be informed as to the value of the goods delivered to him for carriage, as affecting the risk, and the degree of care required, is clearly reasonable. In Moses v. Railroad Co., 24 N. H. 90, while adhering to the rule that the legal responsibility of a common carrier cannot be discharged by a public notice, the court say: "We do not mean to hold that there are no cases in which the carrier may, by notice, define and qualify his responsibility. It may be quite reasonable that he should insist oh proper information as to the value of the article which he carries. This would not seem...