was held that the mere delivery of such receipts did not amount to a contract, unless the terms contained in the receipts were read and assented to by the shipper." But the practice of embodying the terms of shipment in such receipts has become so general that they are no longer distinguishable in this respect from bills of lading. A distinction, however, must be observed between the great express companies of the country, operating on fast passenger trains and boats, and local express companies that make a business of receiving baggage from travelers for transportation to their immediate destination. In the latter case, there is nothing in the nature of the transaction which should naturally lead the traveler to suppose that he was receiving and accepting the written evidence of a contract, rather than a mere identifying voucher, and therefore he is not bound by the terms of the receipt received, in the absence of other evidence that he assented thereto."4

Tickets, Baggage Checks, Receipts, Etc.

Assent to conditions and limitations printed on railroad and steamboat tickets, baggage checks, receipts, and the like, is not presumed from a mere acceptance of these without objection."

55

ing the boy to "take this to Adams Express." The boy did as directed, neglected to value the package, and received an express receipt containing a stipulation limiting the carrier's liability on unvalued packages to $50. Held, that the boy was plaintiff's agent, and, being authorized to deliver the package for shipment, was authorized to bind plaintiff by his acceptance of such limited liability contract, under the rule that an agent to whom the owner intrusts goods for delivery to a carrier must be regarded as having authority to stipulate for the ordinary terms of transportation. Addoms v. Weir, 56 Misc. Rep. 487, 108 N. Y. Supp. 146. In an action against an express company, it appeared that at the time of the shipment a receipt limiting the carrier's liability to fraud and gross negligence was delivered to the shipper. Plaintiff testified that he did not read the receipt at the time of shipment, but upon cross-examination stated that the receipt came out of his own book of receipts, in his possession at the time of the shipment. Held, insufficient to support a finding that the shipper did not have notice of the limitation of liability contained in the receipt. Fried v. Wells, Fargo & Co., 51 Misc. Rep. 669, 100 N. Y. Supp. 1007. In Dakota and Michigan the shipper's assent is by statute required to be shown by his signature. Hartwell v. Northern Pacific Exp. Co., 5 Dak. 463, 41 N. W. 732, 3 L. R. A. 342; Feige v. Michigan Cent. R. Co., 62 Mich. 1, 28 N. W. 685. And see Southern Exp. Co. v. Newby, 36 Ga. 635, 91 Am. Dec. 783.

53 Kirkland v. Dinsmore, 2 Hun (N. Y) 46; Id., 4 Thomp. & C. (N. Y.) 304, reversed 62 N. Y. 171, 20 Am. Rep. 475; Belger v. Dinsmore, 51 Barb. (N. Y.) 69, reversed 51 N. Y. 166, 10 Am. Rep. 575; Adams Exp. Co. v. Nock, 2 Duv. (Ky.) 562, 87 Am. Dec. 510; Kember v. Southern Exp. Co., 22 La. Ann. 158, 2 Am. Rep. 719.

54 BLOSSOM v. DODD, 43 N. Y. 264, 3 Am. Rep. 701, Dobie Cas. Bailments and Carriers, 208. See, also, cases cited in the note following.

55 Prentice v. Decker, 49 Barb. (N. Y.) 21; Limburger v. Westcott, 49 Barb. (N. Y.) 283; Sunderland v. Westcott, 2 Sweeney (N. Y.) 260; Isaacson v.

The reason for this is that the nature of such instruments is not such as to convey to the mind of the shipper the idea of a contract, in such a manner as to raise the presumption that he knew it was a contract expressive of the terms upon which the goods are carried, or an agreement limiting the liability of the carrier.

56

A railroad ticket, for example, is not the contract between the carrier and passenger, but is merely evidence of such contract.5 Such ticket is primarily a convenient voucher or token showing that the passenger has paid for the privilege of being carried between two places. Therefore a passenger is not bound by a notice printed on his ticket, unless he in some way assents to it.57 When the passenger's attention is called to the notice, however, such assent could be implied from acceptance without objection.58 So tokens given in exchange for baggage checks are not of such a nature as to put persons on notice as to memoranda printed upon

New York Cent. & H. R. R. Co., 94 N. Y. 278, 46 Am. Rep. 142, and cases cited infra. In the absence of fraud, the rights of a carrier and shipper are controlled by the contract made on receipt of the property for transportation, and a contract limiting the liability to a specified sum in case of loss is valid; but this rule does not apply to carriers of baggage, the receipt for baggage being only a voucher enabling the owner to follow and identify his property. Baum v. Long Island R. Co., 58 Misc. Rep. 34, 108 N. Y. Supp. 1113. See post, § 194.

56 See post, p. 624; Rawson v. Pennsylvania R. Co., 48 N. Y. 212, 217, 8 Am. Rep. 543; Sleeper v. Pennsylvania R. Co., 100 Pa. 259, 45 Am. Rep. 380; Chollette v. Omaha & R. V. R. Co., 26 Neb. 159, 41 N. W. 1106, 4 L. R. A. 135; New York, L. E. & W. R. Co. v. Winter, 143 U. S. 60, 12 Sup. Ct. 356, 36 L. Ed. 71; Burke v. S. E. Ry. Co., 5 C. P. D. (Eng.) 1, 49 L. J. C. P. 107.

57 Louisville & N. R. Co. v. Turner, 100 Tenn. 213, 47 S. W. 223, 43 L. R. A. 140; The Majestic (D. C.) 56 Fed. 244; Boyd v. Spencer, 103 Ga. 828, 30 S. E. 841, 68 Am. St. Rep. 146; San Antonio & A. P. Ry. Co. v. Newman, 17 Tex. Civ. App. 606, 43 S. W. 915; Rawson v. Pennsylvania R. Co., 48 N. Y. 212, 8 Am. Rep. 543; Mauritz v. New York, L. E. & W. R. Co. (C. C.) 23 Fed. 765. But one who accepts and travels on a "contract ticket" issued by a steamship company for the voyage from England to America, which ticket contained two quarto papers of printed matter, describing the rights and liabilities of the parties, is bound by the stipulations therein, though he has not read or signed. FONSECA v. CUNARD S. S. CO., 153 Mass. 553, 27 N. E. 665, 12 L. R. A. 340, 25 Am. St. Rep. 660, Dobie Cas. Bailments and Carriers, 353. The principle of this last case applies whenever the ticket purports to express the complete contract and express or implied notice of this is brought to the passenger. BOYLAN v. HOT SPRINGS R. CO., 132 U. S. 146, 10 Sup. Ct. 50, 33 L. Ed. 290, Dobie Cas. Bailments and Carriers, 355; Eastman v. Maine Cent. R. R., 70 N. H. 240, 46 Atl. 54; Wenz v. Savannah, F. & W. Ry. Co., 108 Ga. 290, 33 S. E. 970. See post, p. 625.

58 Baltimore & O. R. Co. v. Campbell, 36 Ohio St. 647, 38 Am. Rep. 617; Rawson v. Pennsylvania R. Co., 48 N. Y. 212, 8 Am. Rep. 543.

them, and persons receiving them are not presumed to know their contents, or to assent to them."

59

The bill of lading, too, unlike the ticket or check, plays an important part in commercial transactions as a method of transferring title or otherwise dealing with the goods for which it stands.

SAME-CONSIDERATION OF THE CONTRACT

126. Like other contracts, the contract limiting the carrier's liability must be founded upon a consideration. This consideration is usually found in the reduction of the rate charged for carrying the goods.

The contract limiting the carrier's liability must possess the ordinary elements of contractual validity, and, to be effectual, must hence be supported by a consideration." But as common carriers are bound, owing to their public profession, to carry without any contract limiting their liability, their mere agreement to carry does not furnish any consideration for a contract to limit their liability." In order, therefore, that such contracts must be valid, some other consideration must be found, moving from the carrier to the shipper. It is a sufficient consideration, however, if the carrier agrees to carry for a reduced compensation because of the limitation of his liability.

The same is true when the carrier agrees to do

59 BLOSSOM v. DODD, 43 N. Y. 264, 3 Am. Rep. 701, Doble Cas. Bailments and Carriers, 208; Madan v. Sherard, 73 N. Y. 329, 29 Am. Rep. 153; Indianapolis, & C. R. Co. v. Cox, 29 Ind. 360, 95 Am. Dec. 640.

60 Southard v. Minneapolis, St. P. & S. S. M. Ry. Co., 60 Minn. 382, 62 N. W. 442, 619; Gardner v. Southern R. Co., 127 N. C. 293, 37 S. E. 328; York Mfg. Co. v. Illinois C. R. Co., 3 Wall. 107, 18 L. Ed. 170; Louisville & N. R. Co. v. Gilbert, 88 Tenn. 430, 12 S. W. 1018, 7 L. R. A. 162; Mouton v. Louisville & N. R. Co., 128 Ala. 537, 29 South. 602; Wilcox v. Chicago G. W. R. Co., 135 Mo. App. 193, 115 S. W. 1061; Inman & Co. v. Seaboard Air Line R. Co. (C. C.) 159 Fed. 960; St. Louis, I. M. & S. R. Co. v. Furlow, 89 Ark. 404, 117 S. W. 517; Jones v. Southern Exp. Co. (Miss.) 61 South. 165.

61 St. Louis, I. M. & S. R. Co. v. Caldwell, 89 Ark. 218, 116 S. W. 210; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721; Illinois Cent. R. Co. v. Lancashire Ins. Co., 79 Miss. 114, 30 South. 43; Bissell v. New York Cent. R. Co., 25 N. Y. 442, 82 Am. Dec. 369; McMillan v. Michigan S. & N. I. R. Co., 16 Mich. 79, 93 Am. Dec. 208; German v. Chicago & N. W. R. Co., 38 Iowa, 127. See, also, cases cited in preceding note.

62 Louisville & N. R. Co. v. Gilbert, 88 Tenn. 430, 12 S. W. 1018, 7 L. R. A. 162; Carter & Co. v. Southern R. Co., 3 Ga. App. 34, 59 S. E. 209; Scott County Milling Co. v. St. Louis, I. M. & S. Ry. Co., 127 Mo. App. 80, 104 S. W. 924; Johnstone v. Richmond & D. R. Co., 39 S. C. 55, 17 S. E. 512;

something he is not already bound to do," such as receiving a passenger on freight trains, or carrying a customer free of charge." If the rate of compensation is fixed by law, so that the carrier can charge neither more nor less than a given amount for the transportation of goods, an agreement to carry for such rate would not be any consideration for an agreement on the part of the shipper limiting the carrier's liability. So, also, an agreement to carry at the highest rate allowed by law furnishes no consideration for a contract limiting the carrier's liability.""

St. Louis, I. M. & S. R. Co. v. Furlow, 89 Ark. 404, 117 S. W. 517; Jones V. Southern Exp. Co. (Miss.) 61 South. 165; Bissell v. New York Cent. R. Co., 25 N. Y. 442, 82 Am. Dec. 369; Nelson v. Hudson River R. Co., 48 N. Y. 498; Jennings v. Grand Trunk Ry. Co., 52 Hun, 227, 5 N. Y. Supp. 140; Dillard v. Louisville & N. R. Co., 2 Lea (Tenn.) 288. A stipulation in a bill of lading exempting the receiving carrier from his common-law liability for the loss of goods while in its warehouse, at the end of its line, and before delivering to the connecting carrier, is void, unless there is a special consideration for such exemption, other than the mere receipt of the goods and the undertaking to carry them. Wehmann v. Minneapolis, St. P. & S. S. M. Ry. Co., 58 Minn. 22, 59 N. W. 546.

63 California Powder Works v. Atlantic & P. R. Co., 113 Cal. 329, 45 Pac. 691, 36 L. R. A. 648 (accepting dangerous articles which carrier was not bound to carry); Robertson v. Old Colony R. Co., 156 Mass. 525, 31 N. E. 650, 32 Am. St. Rep. 482 (unique contract for transportation of a circus train).

64 Arnold v. Illinois Cent. R. Co., 83 Ill. 273, 25 Am. Rep. 386.

65 Carter & Co. v. Southern R. Co., 3 Ga. App. 34, 59 S. E. 209; Bissell v. New York Cent. R. Co., 25 N. Y. 442, 82 Am. Dec. 369.

66 Wehmann v. Minneapolis, St. P. & S. S. M. R. Co., 58 Minn. 22, 59 N. W. 546. Where a statute requires a railroad carrying United States mail to carry a postal clerk with the mail without charge, a limitation of the carrier's liability, contained in a pass issued to such postal clerk, is without consideration and void. Seybolt v. New York, L. E. & W. R. Co., 95 N. Y. 562, 47 Am. Rep. 75. Where a carrier had but one regular rate applicable to a given class of property, it is not a reduced or a special rate that will serve as a consideration for an owner's risk contract, as the word "reduced" implies a comparison, and it is not permissible to go outside the subjectmatter to seek the comparison; but it must be made with another higher rate on the same class of property, and where there is no such rate there can be no reductions. Leas v. Quincy, O. & K. C. R. Co., 157 Mo. App. 455, 136 S. W. 963. A railroad, in compliance with the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) placed on file with the Interstate Commerce Commission a schedule of tariffs, showing two rates. The railroad subsequently contracted to carry goods. No freight rate was agreed to, either verbally or in the bill of lading, the latter not reciting that a reduced rate was charged. Held, that no consideration was shown for a contract limiting the liability of the railroad on account of carrying the property for the lower rate. Phoenix Powder Mfg. Co. v. Wabash R. Co., 120 Mo. App. 566, 97 S. W. 256.

67 McMillan v. Michigan S. & N. I. R. Co., 16 Mich. 79, 93 Am. Dec. 208;

When, however, the carrier actually carries for a lower rate than he would charge, were his responsibility as at common law, then the contract is based on a real consideration." The shipper grants, and the carrier benefits by, a diminished liability; the carrier grants, and the shipper benefits by, a reduced rate. Here is the quid pro quo, a mutual and sufficient consideration.

In the absence of proof to the contrary, there is a prima facie presumption of a sufficient consideration. The basis of this presumption is the practice of carriers to graduate their rates according to the risk that they run and the responsibilities they incur.70 Shipper's Option of Carrier's Full Responsibility

A corollary to the principle that the contract limiting liability must be based on a consideration is the rule that the shipper has a right to insist that the goods be carried under the full common-law liability if a commensurate and reasonable rate be paid." Were it not for this option on the part of the shipper, not only would there be no real consideration for the contract limiting liability, but

Bissell v. New York Cent. R. Co., 25 N. Y. 442, 82 Am. Dec. 369; German v. Chicago & N. W. R. Co., 38 Iowa, 127.

68 See cases cited in note 62.

69 Schaller v. Chicago & N. W. Ry. Co., 97 Wis. 31, 71 N. W. 1042; Cau v. Texas & P. R. Co., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053; Wehman v. Minneapolis, St. P. & S. S. M. Ry. Co., 58 Minn. 22, 59 N. W. 546; Arthur v. Texas & P. R. Co., 139 Fed. 127, 71 C. C. A. 391; Stewart v. Cleveland, C., C. & St. L. Ry. Co., 21 Ind. App. 218, 52 N. E. 89. Particularly is this true when the contract recites that it is based on a consideration. Georgia Southern & F. R. Co, v. Greer, 2 Ga. App. 516, 58 S. E. 782; Mires v. St. Louis & S. F. R. Co., 134 Mo. App. 379, 114 S. W. 1052. A declaration contained in a bill of lading to the effect that a limitation of liability expressed in the bill was in consideration of a reduced rate is prima facie evidence of such reduction; and it was error to tell the jury in an action for damages for failure to transport safely, that they could not consider the contract as to the limitation without other evidence of consideration. Wabash R. Co. v. Curtis, 134 Ill. App. 409. This presumption is, of course, a prima facie one, and it may be rebutted (even when there is a recital of a consideration) by evidence showing that the contract limiting the carrier's liability is in reality supported by no consideration. McFadden v. Missouri

Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721; Lake Erie & W. R. Co. v. Holland, 162 Ind. 406, 69 N. E. 138, 63 L. R. A. 948; Georgia Railroad & Banking Co. v. Reid, 91 Ga. 377, 17 S. E. 934.

70 St. Louis, I. M. & S. Ry. Co. v. Lesser, 46 Ark. 236; Schaller v. Chicago & N. W. Ry. Co., 97 Wis. 31, 71 N. W. 1042; Courteen v. Kanawha Dispatch, 110 Wis. 610, 86 N. W. 176, 55 L. R. A. 182. See, also, cases cited in the preceding note.

71 St. Louis Southwestern R. Co. v. Phoenix Cotton Oil Co., 88 Ark. 594, 115 S. W. 393; Illinois Cent. R. Co. v. Lancashire Ins. Co., 79 Miss. 114, 30 South. 43; Paddock v. Missouri Pac. Ry. Co., 155 Mo. 524, 56 S. W. 453; Atchison, T. & S. F. R. Co. v. Dill, 48 Kan. 210, 29 Pac. 148.