effectual as if it had been expressed.35 An express contract cannot, therefore, spring from a notice unless something be done by the party to be affected by it to make it binding upon him. If, however, there be an express assent to the notice it would be equivalent to an express contract. And this is the sense in which the words are to be taken when it is said that the contract, to avail the carrier, must be special; and the bailor or shipper is considered as assenting to the terms of the notice when he takes a bill of lading or receipt for his goods embodying the notice, which makes it a special contract between himself and the carrier.36

Sec. 407. (§ 239.) Same subject.-The same words are used in the English Carriers' Act, which, while it declares, as we have seen, all public notices by carriers ineffectual to limit their liability, provides that nothing therein contained shall affect special contracts for that purpose. Since its passage, many cases have occurred which give us examples of what are considered special contracts with carriers by the English courts. It seems from them that the universal custom of land carriers since that act has been to deliver to the employer a ticket or printed notice in which are stated the conditions upon which the carrying is to be done, and which, when received by him, constitutes the special contract. This, in their view, makes a contract in which the parties are named and the terms agreed upon between them, and that without resorting to anything like a public notice, which satisfies the requirements of the act and avoids the evils against which it was intended to provide.37 In

35. Crouch v. Railway Co., 2 C. & K. 789.

36. When the shipper fills out blank receipts at his own office, and in accordance with such practice fills out a receipt and presents it to an employe of an express company for his signature when he delivers his merchandise for transportation, its terms constitute a proposal on the part of

the shipper for a special contract; and when the agent has assented to such proposal by signing and redelivering it to the shipper, the proposal ripens into a special contract, and, as such, it becomes binding upon both parties. Bernstein v. Weir, 40 Misc. Rep. 635, 83 N. Y. Supp. 48.

37. Palmer v. Railway Co., 4 M. & W. 749; Chippendale v. Railway

deed it is difficult to see how a contract could be made more special.

Sec. 408. (§ 240.) The acceptance of the carrier's receipt creates a contract according to its terms between him and the shipper-Failure to read no defense if no fraud practiced.--As in England, the land carriage of this country is nearly engrossed by railways, canals and express companies, and the usage as to their manner of contracting with their employers is in effect the same. When goods are delivered to them receipts are usually given in which are stated the terms as to the liability of the carrier on which they are to be carried, which are treated in all respects as to their legal effect as bills of lading;38 and it was never doubted that the bill of lading of the carrier by water was not only the receipt of the carrier for the goods, but an express contract between him and the shipper as to every exception of liability in it. And no reason is perceived why a different legal effect should be given to the latter merely because they relate to carriage by water, unless it be upon the ground of the antiquity of their use for that purpose. Hence most of the American cases above cited, while denying the right of the carrier to protect himself by public or general notices, even when brought home to the knowledge. of the bailor, have treated such receipts as creating contracts sufficiently special for that purpose, without inquiring whether they had been read or explained to, or understood or expressly assented to, by the shipper or bailor or not, provided the carrier has resorted to no unfair means of deception, and the employer has had the opportunity to know the contents of such receipt if he had so desired.39 And this is in accordance with

Co., 7 Eng. L. & E. 395; Morville v. Railway Co., 10 id. 366; Austin v. Railway Co., 10 C. B. 454.

38. Downs v. Perrin, 16 N. Y. 325; Downs v. Green, 24 N. Y. 638; ante, § 127.

39. Kirkland v. Dinsmore, 62 N. Y. 171; Louisville, etc. R. R. Co.

v. Brownlee, 14 Bush, 590; Morrison v. Construction Co., 44 Wis. 405; Black v. Railway Co., 111 Ill. 351; Jones v. Railroad Co. 89 Ala. 376; Western Ry. Co. v. Harwell, 91 Ala. 340, 8 So. Rep. 649; Patterson r. The Railway, 56 Mo. App. 657; s. c. 47 Mo. App. 570;

the English decisions.40 Nor is there anything unreasonable in this. Every man of ordinary intelligence knows that no individual or company engaged in the business of carrying to distant places now undertakes to carry his goods subject to the old common-law liability of the carrier. He knows, moreover, that bills of lading are constantly given, not only as the evidence of the receipt of the goods, but as an express and direct notice that they will be carried on certain terms. Knowing this, he cannot be wilfully blind and plead ignorance when it was his duty to know; and knowing in such cases is assenting. If it was his intention to hold the carrier to his common-law liability he should have said so, and have either declined to employ him or sued him for his refusal, after tendering a reasonable sum for his services and risk.41

Sec. 409. (§ 241.) Same subject-Shipper presumed by accepting receipt to have assented to its conditions.-Accordingly, when the owner of the goods accepts a receipt, he is conclusively presumed, in the absence of fraud and imposition, to have assented to all the terms and conditions contained in it,

Railroad Co. v. Dill, 48 Kan. 210, 29 Pac. Rep. 148.

That the receipt was not read is immaterial if no fraud or deceit is practiced. Germania F. Ins. Co. v. Railroad Co., 72 N. Y. 90.

The fact that the contract of shipment is signed in haste and without being read will not relieve the shipper from its lawful provisions. Hengstler v. Railroad Co., 125 Mich. 530, 84 N. W. Rep. 1067. That the contract was not read or explained to the shipper is immaterial if no unfair means were resorted to by the carrier. The burden of proof is on the shipper to show that unfair means were resorted to in securing the contract. Railroad Co. v. Dill, supra, citing Hutchinson on Carr.

In Hadd v. Express Co., 52 Vt. 335, the shipper could not read, and the agent undertook to read the receipt to him. He omitted to read a clause limiting the liability of the carrier to its own line. Held, no fraud, as this would be the legal result if the clause had not been inserted.

40. Y., N. & B. Railway v. Crisp, 25 Eng. L. & E. 396; Palmer v. Railway Co., 4 M. & W. 749; Stewart v. The Railway Co., 3 H. & C. 135; Zunz v. The Railway Co., L. R. 4 Q. B. 539; Acton v. Castle Mail Packets Co., 73 Law T. (1895) 158; Dean v. Furness (Canada), 9 Rap. Jud. Que. B. R.

81.

41. United States: Evansville, etc. R. R. v. Androscoggin Mills,

and this amounts to a contract with the carrier, which, whether called a special or express contract or a special acceptance, becomes at once binding upon both parties. This has been either tacitly or expressly assumed in most of the cases as the indisputable effect of such an acceptance; and in the two leading

cases of Belger v. Dinsmore,42 and Kirkland v. Dinsmore,43 it being denied by the plaintiff that this was the effect of the acceptance of the receipt, and the contention being made for him. that the conditions thus incorporated in it amounted to nothing more than a mere notice, the position was expressly decided to be untenable, and it was held that by such acceptance he had estopped himself from saying that a contract had not been made between himself and the carrier according to the terms of the receipt.**

Sec. 410. Same subject-Cases holding mere acceptance insufficient Ruie in Illinois. It is held, however, in some of the

Tennessee: Dillard v. Railroad the contract, is not sufficient to Co., 2 Lea, 288; Railway v. Stone

& Haslett, 112 Tenn. 348, 79 S. W. Rep. 1031, 105 Am. St. Rep. 955.

Vermont: King v. Woodbridge, 34 Vt. 565; Davis v. The Railroad, 66 Vt. 290, 29 Atl. Rep. 313, 44 Am. St. Rep. 852.

Wisconsin: Boorman v. The Am. Ex. Co., 21 Wis. 154; Schaller v. The Railway, 97 Wis. 31, 71 N. W. Rep. 1012.

42. 51 N. Y. 166.

43. 62 N. Y. 171.

S.

44. Cau v. Railway, 194 U. 427, 24 Sup. Ct. R. 663, 48 L. Ed. 1053. See also cases cited in preceding section.

From the delivery and acceptance of a bill of lading at the time goods are delivered to a carrier for shipment, the presumption arises that the shipper assents to its terms, and mere ignorance of its contents, arising from failure to read it, or to make some reasonable effort to obtain information in that regard, in the absence of any evidence of fraud on the part of the carrier, or of the use of any other means to deter the shipper from fully understanding

overcome the presumption thus raised. While the carrier in the making of such a contract must act in the utmost good faith and with the utmost fairness, if, in the regular course of business, he delivers to the shipper a contract upon the latter's delivery of the goods for shipment, without any circumstances of concealment, nothing further on the carrier's part is required. In the absence of any request for an explanation, the carrier owes no duty to the shipper to make such explanation and the latter cannot successfully allege ignorance of the contract merely because he negligently fails to inform himself of its provisions. The familiar rule applies that if a person makes a written contract with another, he takes upon himself the responsibility of acting intelligently and exercising ordinary care to inform himself of its provisions. Failure to read the contract or to examine it, or, in case of inability to do so without assistance, to obtain such assistance if reasonably within reach, is negligence as a matter