Henry Oppenheimer & Co. v. the United States Express Co..
| Decision Date | 30 September 1873 |
| Citation | 1873 WL 8413,18 Am.Rep. 596,69 Ill. 62 |
| Court | Illinois Supreme Court |
| Parties | HENRY OPPENHEIMER & CO.v.THE UNITED STATES EXPRESS COMPANY. |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.
This was an action brought by the appellants, wholesale jewelers in the city of Chicago, to recover from appellee the value of a box of merchandise which was delivered to the defendant at New York City for transportation to the plaintiffs. A jury having been waived in the court below, the cause was submitted to the court for trial, and judgment rendered for the plaintiffs for $50, from which judgment they appealed.
It appeared in evidence on the trial that, on the 6th of October, 1871, the firm of May & Stern, of New York City, delivered to the driver of one of the United States Express Company's wagons, a box, two feet long, eight inches deep and one foot wide, weighing 25 pounds, and marked “Henry Oppenheimer & Co., 134 Lake street, Chicago, Illinois.” The driver called at the door of the place of business of May & Stern, where the box was delivered to him by a person in their employ, who, at the same time, handed to the driver for his signature a bill of lading or receipt, which had been previously filled out by another person in May & Stern's employ; nothing was said in regard to the contents of the box or their value, and there was no mark upon the package to indicate what it contained. The bill of lading or receipt taken was in the following terms:
“UNITED STATES EXPRESS COMPANY,
NEW YORK, Oct. 6, 1871.
May & Stern delivered to us one case, valued at $--, marked as follows: ‘ Henry Oppenheimer & Co., 134 Lake St., Chicago, Ill.,’ which we undertake to forward to the nearest point of destination reached by this company, only perils of navigation excepted. And it is hereby expressly agreed that the United States Express Company are not to be held liable for any loss or damage, except as forwarders only; nor for any loss or damage of any box, package, or thing, for over $50, unless the just and true value thereof is herein stated; nor for any loss or damage by fire, the acts of God, or of the enemies of the government, the restraint of governments, mobs, riots, insurrection, pirates, or from any of the dangers incident to a time of war; nor upon any property or thing, unless properly packed and secured for transportation; nor upon frail fabrics, unless so marked upon the package containing the same; nor upon any fabrics consisting of or contained in glass.
+------------------------------------+
¦For the proprietors,¦ ¦
+--------------------+---------------¦
¦Contents unknown. ¦O. HANLENBECK.”¦
+------------------------------------+
The receipt was in the usual form of the United States Express Company's receipts, and was bound up with others in a book of printed blank receipts, which had been for a long time in the possession of May & Stern, and kept by them as a receipt book for goods delivered to the express company. The printed form consisted of all those portions of the receipt not appearing above in italics. The words and figures in italics were inserted in ink by Siegfried May (who was not living when the cause was tried,) in May & Stern's office, with the exception of the signature, which was written by the driver in pencil when he received the package.
Two expressmen testified that they had been accustomed--one of them for a year and a half, the other for three months prior to Oct. 1871--to call several times a week at May & Stern's office to receive goods; that they were accustomed to ask the value of packages, and always gave a receipt for them like the one above set forth.
It was the custom of the company to make an additional charge for the carriage of parcels when the value exceeded $50; which extra charge was then one-eighth of one per cent on the entire value, if the distance was less than 300 miles, and one-fourth of one per cent if the distance was greater.
The charge for freight upon the box in question was $1.40. It contained watches and jewelry of the value of $3800. The charge on that value, if disclosed, would have been $10.90.
It appears that extraordinary precautions were taken for the safe carriage, keeping and delivery of valued packages. All the valued packages in the office at Chicago at the time of the fire of October 8 and 9, 1871, were saved, and none of the valued goods which came through from New York upon the train by which the box in question was forwarded were lost. This box was placed on board the Erie train at Jersey City on the 6th of October, 1871, and arrived at Chicago on Sunday morning, the 8th of that month, and was there deposited with the rest of the ordinary freight, and was destroyed by fire on the succeeding night, admittedly without fault or negligence on the part of the company.
The testimony of May & Stern, and of the shipping clerk who took the receipt and delivered the goods to the express company, and also that of the plaintiffs, was, that they were not aware of the printed contents of the receipt, and that they never assented to any such obligation or contract as the receipt purports on its face.
Messrs. ROSENTHAL & PENCE, for the appellants.
Messrs. AYER & KALES, for the appellee.
The question presented by this record is, as to the effect of the clause in the receipt in this case restricting the liability of the company to $50, unless the value of the package was stated. The denial in the testimony that the consignors had knowledge of this condition in the receipt, must be held to be overcome by the circumstances of the case. These consignors were business men, merchants, engaged in an extensive traffic in the city of New York. They had, for a series of years, been doing business with this company, making shipments of goods over its lines for a period of at least a year and a half prior to the delivery of the package in question, these shipments occurring as often as two or three times a week. They were provided with a book containing the printed blank receipts of the company in general use, which they were in the habit of filling out themselves and presenting to the company's agent for signature when he...
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