Nor will it do to say that special means express as distinguished from implied, and that the contract must be expressly assented or agreed to by the bailor. This would be simply drawing a very wide distinction between the obligation of an express and an implied contract, which does not exist either in law or in morals. And besides, in some of the very cases in which the efficacy of notice is denied, the carrier was relieved on the ground of contract, although both knowledge and assent were denied. For instance, in the leading case of the York Company vs. Central R. R., 3 Wall., 107, the carrier was relieved from the liability for loss by fire because that was one of the excepted dangers in his bill of lading, although it was proven by the agent of the shippers that the cotton was put on board the steamer before the bill of lading was signed, that he did not examine it, and that his attention was not called to the fire clause. In this then, as well as in others of the above cited cases, there was no express assent to the terms on which the carrier received the goods, and yet it was held that there was an express or special contract which protected him.

We must, therefore, look to the occasion and the circumstances of its use in order to arrive at the meaning of those who use it to describe a contract.

In this view, we do not think there can be very great difficulty in fixing its meaning, when applied to the contracts of carriers. The same word is used in the English Carriers' Act, which, while it declares ineffectual all public notices by carriers to limit their liability, provides that nothing therein contained shall affect special contracts for that purpose.

Since the passage of this act, many cases have occurred and are reported 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. Indeed, it would be difficult to conceive how a contract could be made more special: Palmer vs. Grand J. R. R., 4 M. & W., 749; Carr vs. Railway Co., 7 Ex., 707; Chippendale vs. Lancashire R. R.,7

10 Eng. L. &

And it is not

Eng. L. & E., 395; Morville vs. G. N. Railway Co., E., 366; Austin vs. Manchester R. R., 10 C. B., 454. necessary that such ticket should be read over to the shipper, or his attention directed to its contents: Y. N. &. B. Railway Co. vs. Crisp, 25 Eng. L. & E., 396; Palmer vs. Grand J. R. R., 4 M. & W., 749.

As in England, the land carriage of this country is nearly engrossed by railways, canals, and express companies, and the usage as to the manner of contracting with their employers is believed to be in effect the same. When goods are delivered to them a receipt is 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: Dows vs. Perrin, 16 N. Y., R. 328; Dows vs. Green, 24 Id., 630; and it was never doubted but that the bill of lading of the carrier by water was not only the receipt of the carrier but an express contract between him and the shipper as to every exception contained in it. And no reason is perceived why a different legal effect should be given to them because the one relates to carriage by water while the other relates to carriage by land, unless the former derives some advantage from the antiquity of its use.

Hence, most of the American cases above cited, while denying the right of the carrier to protect himself by public or general notices, have treated such receipts as creating contracts sufficiently special for that purpose, without inquiring whether they had been read or explained, or understood, or 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, if he had desired, the contents of such receipt. Nor is there anything unreasonable in this. Every man of ordinary intelligence knows that no individual or company engaged in the carrying business now undertakes to carry his goods subject to the old common law liability of the carrier. He knows, moreover, that bills of lading and receipts are constantly given, not only as evidence of the receipt of his goods, but as express and direct notice to him that they will be carried on certain terms. Knowing this, he can not be willfully blind. He can not 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.

Accordingly, it has been held in many cases that such conditions

included in the receipt thus given are binding on the employer as special contracts between him and the carrier, which he is not allowed to dispute or avoid by showing that he did not expressly assent, or did not know its contents, or did not read it until after the loss had occurred. As, for instance, notices in such receipts that the carrier would be responsible only for a certain sum, unless the thing bailed for carriage should be valued and paid for accordingly, although it might be of greater value than the limited sum: Kallman vs. Adums Ex. Co., 3 Kansas, 205; Hopkins vs. Westcott, 6 Blatchf. R., 64; Brehme vs. Adams Ex. Co., 25 Md., 328; Boorman vs. Ex. Co., 21 Wis., 152; or that he would not be responsible for accidents or losses from fire: York Co. vs. Central Railroad, 3 Wall., 107; Farnham vs. Camden & A. R. R., 55 Penn. S., 53; Swindler vs. Hilliard, 2 Rich., 286; Parsons vs. Monteith, 13 Barb., 358; or for breakage not caused by negligence: Steele vs. Townsend, 37 Ala., 247; Nelson vs. Hudson River R. R., 48 N. Y., 498. And if the owner of goods seeks to recover from the carrier by proving the bailment by his receipt, he must take the receipt as a whole, and the defendant is entitled to the benefit of any exception which it contains in his favor: Burroughs vs. Norwich, &c., R. R., 100 Mass. R., 26; and in the Baltimore, &c., R. R. vs. Rathbone, 1 West Va., 87; the words "at the owner's risk," in the receipt or bill of lading, were held to absolve the carrier from all liability not the result of negligence. It will be also remembered that in Gould vs. Hill, Cowen, J., argues, unanswerably as it seems to us, that no distinction can be made between such a receipt and the most express contract.

But the most thoroughly considered case upon the exact point is perhaps that of Belger vs. Dinsmore, in the New York Court of Appeals, decided at its September Term, 1872, and not yet reported. The case turned upon the effect of the receipt of an express company, given to the wife of the plaintiff for certain trunks and boxes delivered by her to the company to be carried. The receipt contained a notice that the company was not to be held liable for loss or damage to the property arising from the dangers of railroad, ocean, or river navigation, steam, fire in stores, depots, or in transit, leakage, breakage, or from any cause unless occurring from the fraud or gross negligence of the company or its servants, and that the holder of the receipt should not demand beyond the sum of fifty dollars, unless otherwise expressed, or unless the property was specially insured, and so specified in the receipt. There was in the case no valuation of the property, nor any insurance. The property, which was proven

to have been of the value of about five hundred dollars, was lost. The court held that the receipt was a contract between the plaintiff' and the company, and the plaintiff could not therefore recover more than fifty dollars, declaring that the presumption of law is that the party receiving an instrument in the transaction of any business is acquainted with its contents; that the instrument in question bore upon its face notice that it was not merely a receipt for the goods in the ordinary acceptation of the term; that there being no fraud, imposition, concealment, or improper conduct or practice of any kind on the part of the company or its agents, there was no rule or principle which required a party giving an instrument to another declaratory of their natural rights and obligations to prove affirmatively that the person receiving or accepting it had knowledge of its contents, in the absence of any proof or circumstances either to raise the presumption or inference of the want of such knowledge; that a person receiving a bill of lading on the delivery of property to a carrier for transportation in the usual and ordinary course of business, knows that it is a contract containing the terms and conditions upon which it is to be carried, and he, by the acceptance of it, assents to those terms and conditions; that such terms and conditions thereby become obligatory on both parties, and prescribe their mutual rights and obligations, and that the plaintiff in the case having paid freight at the rate prescribed for an article not exceeding fifty dollars in value, agreed to assume all risks for the excess in value, and to relieve the company from all liability on account of it beyond that sum, and could, with no more justice or propriety, claim its full value than the company could demand additional freight; that the court below had entirely overlooked the material fact in the case, which was that the plaintiff, by accepting the receipt as evidence of the defendant's obligation and liability, gave his assent to what was considered a proposal, and to all its terms and conditions, and that it thereby became operative and effectual as a contract. The same case is reported in 51 Barb., 69, but with a different conclusion from that arrived at by both the Court of Appeals and the Circuit Judge.

The rule, therefore, fairly to be deduced from the cases is, that where notice of his terms is brought home to the employer or bailor by the carrier in the very transaction of bailment, and the owner of the goods still employs him for their transportation, he thereby engages to abide by those terms, and the contract becomes sufficiently special to bind him; and that it will be no excuse for him that he did not read the printed notice in the receipt given him at the time, beVOI -NO. IV.—3

cause, as is said in one of the cases, he did not choose to read it. Taken with the qualification in which the cases all agree, that such notice is to be construed strictly against the carrier, no fairer rule, perhaps, can be adopted. And certainly if the carrier is entitled to the benefit of reasons from the analogy of other cases, this rule can be vindicated by an unanswerable argument in his favor to be drawn from the law of general insurers, the conditions in whose policies, whether known to the insured or not, and though signed only by the insurer, are not only contracts, but absolute warranties; and from the almost precisely similar cases of telegraph companies, whose notices, given by printed blanks, are binding upon all who send messages by them, and that though never read by the sender: Breese vs. United States, &c., 45. Barb., 274; Ellis vs. Am. Tel. Co., 13 Allen, 226: Scott & Jarnagin on Telegraphs, §§ 205–210.

Some of the cases have not, however, gone to this extent, but have required proof that the owner of the goods gave his express assent to the terms of the notice. And in Adams vs. Haynes, supra, Walker, C. J., apparently with some feeling, denies that the employer can be thus bound unless his express assent to the terms of the notice be shown. Its application has also been denied where the conditions were printed on the back of the receipt: Michigan Central R. R. vs. Hale, 6 Mich., R., 244; where the receipt was delivered at night when it could not be read: Blossom vs. Dodd, 43 N. Y., 264; or to a foreigner who did not understand the language in which it was printed: Camden & A. R. R. Baldauf, 16 Penn. S. 67. Though these last two exceptions seem to be in conflict with the English cases as to the same point.

Whatever effect may be allowed to notices given in this manner, it has been conceded in this country as in England, that no formality is required in the contract and that it may be oral as well as in writing: Roberts vs. Riley, 15 La. An., 103; Ill. Cen. R. R. vs. Morrison, 19 Ill. R., 136; and it is believed that no case can be found in which the bill of lading of the carrier by water has been denied to be notice to the shipper of all it contains without further proof than its delivery to him. The idea that the carrier may restrict his liability by public notices has been so generally repudiated in this country that it would be idle to attempt to defend it. For although a disposition was shown to give effect to them when it appeared that they were known to the bailor in some of the earlier cases in this country, their authority seems to have been completely overslaughed by that of Hollister vs. Nowlen, Cole vs. Goodwin, and other cases