cases that the mere acceptance by the owner of the goods of a receipt in which are inserted terms or conditions intended to alter or modify the carrier's common-law liability is insufficient to constitute a contract between him and the carrier according to such terms or conditions. In order that the owner may be concluded by the limitations contained in the receipt, it must further appear, so it is said, that he assented to its conditions or restrictions when he accepted it from the carrier, and that whether there was such an assent on his part must be determined by the jury on evidence aliunde and from all the circumstances attending the acceptance; the burden of proof being on the carrier to show that such conditions were so assented to by the owner of the goods. The courts of Illinois have repeatedly

of law. In view of the way business has been conducted by transportation companies for a long period of time as a matter of common knowledge, there is no reason why contracts between such companies and their customers should be excepted from the foregoing rule. Schaller v. Railway, 97 Wis. 31, 71 N. W. Rep. 1042. The subject was also considerably discussed by Cooley, J., in McMillan v. The Railway Co., 16 Mich. 112, in favor of the position that if the consignor of goods receive a bill of lading or receipt from the carrier containing limitations of the latter's liability without making any objection thereto, and has not been misled or imposed upon, he cannot deprive the carrier of the benefit of such limitations by showing that he took the bill of lading or receipt without reading it and without being aware that it contained them, but that in the absence of fraud the terms of the bill of lading or receipt will be conclusive.

1. This subject was extensively discussed by Johnson, J., in the case of Gaines v. The Union Transportation Co. in the supreme court commission of Ohio, 28 Ohio St. 418, and the settled law of that state was said by him to be as follows:

"1. That a special exception of the liability of a common carrier of goods for any loss which may arise from damage by fire happening without his neglect or fault may be lawfully created by special contract between the parties, though it cannot be made by general notice known or unknown to the party engaging the services of the common carrier. Davidson r. Graham, 2 Ohio St. 131; Graham & Co. v. Davis & Co., 4 id. 362; Welsh v. Pittsburg, Ft. W. & C. R. R. 10 id. 65; C. H. & D. R. R. Co. v. Pontius, 19 id. 221.

"2. That while a common carrier by special contract with the owner of the goods intrusted to him may SO far restrict his common-law' liability as to exonerate himself

adhered to this view and it may be stated as the settled law in that state.2

Sec. 411. (§ 242.) Form and nature of the contract-Need not be in writing-Evidence to establish.-In the absence of a

from losses arising from causes judge, "the numerous and someover which he had no control, and what conflicting cases on this to which his own fault or negli- point, it is enough to say that the gence in no way contributed, he principle adopted in Ohio and cannot by such stipulation relieve steadily adhered to, that the comhimself from responsibility for mon-law liability of the carrier losses caused by his own negli- can be limited by a special agreegence or want of care or skill, and ment only, is supported both by the burden of proof is upon the reason and authority. That there carrier to show not only a loss should be an express assent to within the terms of the excep- limitations of a carrier's liability tion, but also that proper care and is decided in the following cases: skill were exercised to prevent it. Adams Ex. Co. v. Nock, 2 Duvall, Graham & Co. v. Davis & Co., 4 563; Express Co. v. Moon, 39 Miss. Ohio St. 362. 832; Levering v. Union Trans. Co., 42 Mo. 88; Adams Ex. Co. v. Haynes, 42 Ill. 89; Adams Ex. Co. r. Stettaners, 61 id. 186; Railroad Co. v. Manufacturing Co., 16 Wall. 329, and numerous other cases."

"3. A bill of lading signed by the company's receiving agent and accepted and acquiesced in by the consignor is binding upon the latter although not signed by him, and the terms and conditions of the contract expressed therein can not be contradicted by parol proof. C., H. & D. R. R. Co. v. Pontius & Richmond, 19 Ohio St. 222.

"4. That where a common carrier, who has received and undertaken to carry the goods of another, seeks, in an action against him, to limit his common-law liability as such, the burden is on him not only to establish the special agreement limiting the liability, but also to show that the loss falls within the terms of such agreement. Graham . Davis, 4 Ohio St. 362; The Union Ex. Co. v. Graham, 26 id. 595; The United States Ex. Co. v. Backman, 28 id. 144." "Without reviewing at large," said the learned

The mere acceptance by the shipper of a bill of lading in which the liability of the carrier, in the event of loss, is limited to five dollars per one hundred pounds, the true value being much more, will not bind the shipper to its terms. In order to so bind him, the evidence must show that he assented or agreed to its terms. St. Louis, etc. Railway Co. v. McIntyre, (Tex. Civ. App.), 82 S. W. Rep. 346.

2. Adams Ex. Co. V. Haynes, 42 Ill. 89; Adams Ex. Co. 1. Stettaners, 61 id. 184; Anchor Line, v. Dater, 68 id. 369; Ill. Cent. R R. r. Frankenberg, 54 id. 88; Field v. Railroad, 71 id. 458; U. S. Express Co. v. Haines, 67 id. 137; Merchants' Dis. Co. V. Ley.

statute to the contrary no particular form or mode is required to constitute such a contract as will be binding upon the carrier's employers, The courts have gone no further in this regard than to hold that no such contract can spring from a general or public notice, even when it is most explicitly shown that the owner of the goods had notice of it; and to this extent they have uniformly and persistently adhered to the doctrine. of Hollister v. Nowlan and Cole v. Goodwin. And it is equally well settled that a private notice, though given directly to the owner, cannot be made to bind him as a contrac, unless something is done by him, besides the delivery of his goods to the carrier, to show his agreement to the terms of such notice. Whenever, however, it appears that what has been proposed on one side has been accepted by the other, a contract is proven which will be mutually binding, whether the proposition is made in the form of notice or in any other manner. But the proof of assent to the terms proposed by the carrier must be clear in such a case; for the law having imposed an important duty upon him upon grounds of public policy, will not permit him to divest himself of its responsibilities and throw the loss upon his employer, when the proof that the latter has so agreed is doubtful. But it is not required that such proof, if otherwise satisfactory, shall be written. A verbal contract is as obligatory as a written one when established. The only

sor, 89 Ill. 43;

Merchants' Dis. Co. v. Joesting, 89 Ill. 152; Railroad Co. v. Fox, 113 Ill. App. 180; Express Co. v. Bratton, 106 Ill. App. 563; Railroad Co. v. Harris, 55 Ill. App. 159; Coles v. Railroad Co., 41 Ill. App. 607; Railroad Co. v. Davis, 159 Ill. 53, 42 N. E. Rep. 382, 50 Am. St. Rep. 143; Railroad Co. v. Simon, 160 Ill. 648, 43 N. E. Rep. 596, affirming 57 Ill. App. 502; Chicago, etc. R'y Co. v. Calumet Stock Farm, 194 Ill. 9,

61 N. E. Rep. 1095, 88 Am. St. Rep. 68, affirming 96 Ill. App. 337. But see Anchor Line v. Knowles, 66 Ill. 150, in which it was held that if the receipt contain a provision that the carrier should not be liable for loss by fire or other casualty, and no question was made as to the shipper's knowledge of its contents, it must be inferred that he had such knowledge at the time of the shipment, and agreed to its terms.

difference is in the manner and in the degree of certainty of the proof.3

4

Sec. 412. ($243.) Same subject-Parol modifications-Signing by one party-Effect of carrier's omission to sign.-As we have seen, however, all verbal agreements entered into previous to the acceptance of the bill of lading or receipt are considered as merged in the latter, and no evidence will be admissible to vary or contradict or to modify its terms by such previous instructions or contracts. But it has been held to be competent for the parties to show subsequent modifications or changes of the written contract by the enlargement of the time of performance or to vary it in any of its terms; or, if founded upon a new consideration, to waive and discharge it altogether.5 Nor, if the evidence of the contract is in writing, is it, in the absence of a statute to that effect, required to be signed by both par

3. Missouri, etc. Ry. Co. v. Patrick, C. C. A. 144 Fed. 632, citing Hutchinson on Carr; reversing Patrick v. Railway Co.,

Ind. Terr. ―, 88 S. W. Rep. 330; Roberts v. Riley, 15 La. An. 103; Ill. Cent. R. R. Co. v. Morrison, 19 Ill. 136; Gould v. Hill, 2 Hill, 623; Railway Co. v. Nicholai, 4 Ind. App. 119, 30 N. E. Rep. 424, 51 Am. St. Rep. 206, citing Hutchinson on Carr.

"While it is true," says Camp bell, J., "that it devolves upon a carrier to show affirmatively the terms of any contract which lessens his common-law liability, yet that fact is to be proven like any other, by any pertinent evidence. If in writing, the writing must be shown; but if by parol, there is no rule which requires different proof from that which would establish any other contract. does not matter that the evidence is conflicting, for in civil cases the jury must always decide upon

It

the weight of the evidence; and there is no rule (except where turpitude or illegality is in issue) which requires one contract to be proven by more or different testimony than another. The jury, in each case, must be satisfied that a certain contract exists; and if satisfied, that is sufficient." American Transp. Co. v. Moore, 5 Mich. 368.

A bill of lading, unsigned by the carrier's agent but furnished the shipper on his request, while not constituting a written contract, is evidence of the contract actually made. Missouri, etc. Ry. Co. v. Patrick, supra.

4. Ante, §§ 167-171.

5. The Delaware, 14 Wall. 603. But where the contract of shipment does not provide for a limitation of liability, it will not be competent by proof of a custom to vary the contract in such respect. McMillan v. Express Co., 123 Iowa, 236, 98 N. W. Rep. 629.

ties. Bills of lading and receipts given by carriers are always signed by them, because, as we have seen, they are not only acknowledgments of the receipt of the goods, but are contracts to carry; and, as such receipts and contracts, they should always be required by the shipper. If, however, they contain the terms and conditions upon which the goods are received to be carried, they are, when signed by the carrier, conclusive as evidence that he has assented to them; and when accepted by the shipper, such terms and conditions, according, at least, to the weight of authority, become also his contract as conclusively as if he had also signed such receipt.

Sec. 413. (§ 243a.) Same subject-Statutory requirements. -In many of the states, however, statutes have been enacted regulating the form in which contracts limiting the carrier's liability shall be made. Thus, it is frequently provided that the contract shall not be valid unless signed by both parties, and, less frequently, unless the contract shall be wholly in writing and signed by both parties. These statutes have for their purpose not only to secure tangible evidence of the shipper's consent without relying upon the uncertainties of parol evidence, but also to secure the shipper against the imposition or mis take which is possible to result from the use of printed forms prepared by one party.

Statutes of this nature are lawful and must be observed."

Sec. 414. ($244.) Notices not intended to limit liability.— But while the power of the carrier to limit his liability by what are called public or general notices or by private notice without some act on the part of his employer to show his agreement to be bound by it, which would give rise to a contract according to its terms, is universally denied in this country, it does not follow that there may not be cases in which he may claim protection from such notices when they are known to those who send their goods by him.s A distinction is to be

6. Ante, § 407.

7. See Feige v. Railroad Co., 62 Mich. 1.

8. See post, §§ 437-438.