Monroe County NyArchives Court.....Jennings, George Vs. Grand Trunk Railway Co Of Canada 1889
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Source: Reports Of Cases - New York
Written: 1889

Fifth Department, March Term, 1889.

GEORGE E. JENNINGS, GILMAN H. PERKINS and AARON E. PERKINS, Respondents, v. THE 
GRAND TRUNK RAILWAY COMPANY OF CANADA, Appellant.

Principal and agent — shipping note — presumption that the bill of lading 
contains the same conditions - power of a vendor shipping articles to his vendee 
to limit by a special contract, the carrier's liability — release — protection 
of a carrier from the negligence of connecting roads — the failure to serve a 
notice must be specially pleaded — when the defendant cannot avail itself of it.

In 1881 J. & H. Shanly & Co., who resided in the city of Rochester, were engaged 
in buying potatoes in Canada, at points upon the line of the defendant's road, 
and shipping them to the city of St. Louis for a market. Before making any 
shipment they requested the general manager of the defendant's business to give 
them the lowest rates in car-load lots from certain points mentioned, on the 
defendant's line, to the city of St. Louis, and the said rates were given to 
them in a letter written by its general agent.

Upon the trial of an action, brought to recover damages alleged to have been 
sustained by the plaintiffs because of the defendant having negligently delayed 
to transport a car-load of potatoes, it appeared that this car-load was 
delivered to the defendant by one Du Brule, of whom Shanly & Co. had purchased 
the same, on the eighteenth day of April at Brockville, that Du Brule, at the 
time of the delivery, notified the defendant's station agent that they were to 
be shipped to Shanly & Co., and thereupon Du Brule filled up and signed with his 
own hand and delivered to the station agent a blank shipping note kept by the 
defendant and supplied to shippers for that purpose, which, in substance, was a 
request to defendant to ship said potatoes subject to the terms and conditions 
printed on the back of such shipping note, which terms were assented to as the 
basis upon which the defendant's bill of lading was to be delivered. At the same 
time the station agent delivered to Du Brule a bill of lading, which he attached 
to his own draft drawn on Shanly & Co. for the balance due him for the purchase 
price of the potatoes. 

The draft was forwarded for collection and the same was paid a few days 
thereafter. Neither party put the bill of lading in evidence on the trial or 
proved its contents.

Held, that, as Du Brule was charged by the plaintiffs with the duty of shipping 
the goods, the carrier was authorized to make a valid and binding special 
contract with him, such as the owner might have made if he had been personally 
present conducting negotiations.

That as neither party put in evidence the bill of lading, nor was its contents 
proved on the trial, it and the shipping note, which were both executed at the 
same time, and simultaneously delivered and related to the same subject-matter, 
should be considered as constituting one agreement, and that it would not be 
assumed that the bill of lading contained any provision changing or modifying 
the terms or conditions contained in the shipping note, or anything inconsistent 
with these provisions or conditions.

That as no proof was made in this case as to the laws of Canada, the rule which 
prevails in this State allowing a carrier to limit his liability would be 
presumed to prevail in Canada.

That the facts of this case, that the special rate at which the potatoes were 
carried was the lowest rate made by the defendant for this class of freight; 
that it was made at the particular request of the shipper; that it was, in fact, 
a less rate than the defendant was authorized to charge for the transportation 
of the potatoes beyond the line of its own road, constituted a good 
consideration for the special contract which was valid and binding alike upon 
the carrier and the plaintiffs.

The referee found as a fact that the transportation of the potatoes was 
negligently hindered and delayed by the defendant upon its own road, and also 
upon, the connecting road, and that in consequence of such delays and the long 
confinement of the potatoes in the car they were greatly depreciated in their 
market-value.

It was provided in the contract that the responsibility of the defendant should 
terminate when the goods should have arrived at the place to be reached on its 
own road, where it connected with other roads, and that the defendant should not 
be liable for damages to the property arising from delays which occurred on the 
connecting roads, the contract providing as follows: "Nor will the company be 
liable for damages occasioned by delays caused by storms, accidents, over-
pressure of freight or unavoidable causes, or by the weather, wet, fire, heat, 
frost, or delay of perishable articles, or from civil commotion."

Held, that as the defendant could legally contract, and had, in this case, 
agreed to carry and deliver the goods at East St. Louis, the connecting lines 
engaged by it to carry the goods to their destination were the agents of the 
defendant, and it was liable for their negligence resulting in damages to the 
owners.

That, as all the delays occurred in consequence of the defendant's own 
negligence, the release did not protect the defendant, as it did not, by its 
terms or necessary implications, exempt the defendant from damages arising from 
its own negligent acts or those of its agent or servants.

The defendant contended that it was exempt from such damages as the plaintiff 
suffered by loss of market, on account of the delays, under another clause of 
the contract, which provided "that the company shall not, in any case or under 
any circumstances, be liable for loss of market."

Held, that as this clause did not in terms apply to a case where the loss of a 
market arose from the defendant's negligence, the contract should be so 
construed as to make the release in this respect applicable to cases where the 
loss of a market arose from other causes, such as a failure to deliver within a 
stipulated time.

The defendant pleaded, in bar of a recovery for the cause of action set out in 
the complaint, that no written notice was served of any claim for damages, as 
required by the twelfth clause printed on the back of the shipping bill, which 
is as follows: "12. That no claim for damages to, loss of, or detention of, any 
goods for which this company is accountable shall be allowed, unless notice in 
writing and the particulars of the claim for said loss, damage or detention are 
given to the station freight agent nearest to the place of delivery within 
thirty-six hours after the goods, in respect of which said claim is made, are 
delivered."

The allegation of the answer, in this respect, was: "And this defendant alleges, 
upon information and belief, that the notices required by said agreements were 
never given as thereby required." No allegation was made that no notice was 
served within thirty-six hours from the time of the delivery of the freight at 
the end of its journey to the plaintiff, except inferentially and 
argumentatively.

Held, that as the court should enforce the common-law obligations of common 
carriers with rigor, and should modify them only with reluctance and of 
necessity, and as the defense set up by the defendant did not, in any repect, go 
to the merits of the controversy between the parties, except as it was founded 
upon this forfeiture clause contained in the printed conditions indorsed upon 
the way-bill, that the defense was not sufficiently alleged to enable the 
plaintiff to avail itself of the clause in question.

The claim was, in fact, presented to the defendant by letter before the action 
was brought, though not within the thirty-six hours, and an answer was sent from 
the defendant's general freight agent's office acknowledging the receipt of the 
notice, expressing the sorrow of the agent with regard to the detention of the 
potatoes, and stating that the plaintiffs were doubtless aware that such 
detention had arisen through causes over which the defendant had no control, 
namely, the strike of railway employees in Chicago.

Held, that this was a waiver of the condition.

That the condition was not available to the defendant, under the circumstances 
of this case, as it was not intended by the officers of the company to apply, 
when the agreement of the company was to transport freight so far from the place 
of shipment and beyond the defendant's line.

That the time limited, in which to ascertain the particulars of the loss and 
place them before the company, was palpably too short to enable the owners to 
comply therewith when the delivery was to be made so far off.

That the plaintiffs, under a special contract which was outside of the company's 
general business and against its printed regulations, could not be bound by the 
clause on the back of the shipping bill which, apparently by inadvertence, had 
not been struck out or adapted to long hauls over other railways than the 
defendant's, and to deliveries at great distances from its western terminus. 
(Barker, J., dissenting.)

Jackson v. St. Paul Fire and Marine Insurance Company (99 N, Y., 124) followed.

Appeal from a judgment, entered in the office of the clerk of Monroe county on 
the 21st day of June, 1887, upon the report of a referee, awarding to the 
plaintiff the sum of $2,420 damages and $675 costs.

The defendant is a foreign corporation, created by and under the laws of Canada, 
for the transportation of freight and passengers, its western terminus being at 
Fort Gratiot, where it connects with other railways running west from that 
point, constituting a through line to the city of St. Louis. In 1881 J. H. 
Shanley & Co., residing in the city of Rochester, N. Y., were engaged in buying 
potatoes in Canada, at points upon the line of the defendant's road, and 
shipping them to the city of St. Louis for a market. Before making any shipments 
they requested the general manager of the defendant's business for the lowest 
rates in car-load lots from points mentioned on the defendant's line to the city 
of St. Louis, which were given in a letter written by the general agent, who 
also, at the same time, informed the defendant's station agents of the rates 
which had been given Shanley & Co. Thereafter, and between the eighteenth and 
twenty-sixth day of April, Shanley & Co. delivered to the defendant, in car-load 
lots, five separate shipments of potatoes to be transported to St. Louis. It is 
claimed that the transportation was negligently delayed, and in consequence 
thereof the potatoes were depreciated in quality and the shipper lost a market. 
This action is to recover the damages sustained by reason of the delays. One car-
load was shipped at Brockville, April 18, 1881, by one Joseph E. Du Brule, of 
whom Shanley & Co. purchased the potatoes, who, at their request, delivered the 
potatoes to the defendant for transportation. At the time of the delivery Du 
Brule signed and delivered to the station agent a shipping note, so-called, of 
which the following is a copy:

"GRAND TRUNK RAILWAY COMPANY OF CANADA.
"This company will not be responsible for any goods missent, unless they are 
consigned to a station on their railway. Rates, weights and quantities entered 
on receipts are not binding on the company, and will not be acknowledged. All 
goods going to or coming from the United States will be subject to customs, 
charges, etc.

"Brockville, April 18th, 1881.

"The Grand. Trunk Railway Company of Canada will please receive the 
undermentioned property, in apparent good order, addressed to order of 
Merchants' Bank of Canada, East St. Louis, Ill. To be sent by the said company, 
subject to the terms and conditions stated above and on the other side, and 
which are agreed to by this shipping note, delivered to said company, as the 
basis upon which their receipt is to be given for said property.

No.  Packages and Species of Goods.  Marks.  Weight, lbs.  Paid on.
1    Car potatoes in bulk, said to 
     contain 400 bus............			
     Owner's risk................			
     Advise J. H. Shanley & Co... 
     G. T. car 1563...............			
				
J. E. DU BRULE, "Consignor."

The material clauses, printed on the back of this paper, are referred to in the 
opinion. They were printed under a heading, in large type, which reads, 
viz.: "General notices and conditions of carriage." The facts and circumstances 
connected with each of the other shipments, so far as they differ from the one 
just referred to, are pointed out in the opinion. Before the commencement of 
this action Shanley & Co. assigned their cause of action to the plaintiffs.

E. C. Sprague, for the appellant.

Martin W. Cooke, for the respondents.

Macomber, J.:

The opinion of the presiding justice, which contains all the material facts 
except as herein mentioned, would lead to an affirmance of the judgment in the 
case, save for the twelfth printed condition on the back of the bill of lading. 
That condition is as follows: "12. That no claim for damages to, loss of or 
detention of any goods for which this company is accountable, shall be allowed 
unless notice in writing and the particulars of the claim for said loss, damage 
or detention are given to the station freight agent nearest to the place of 
delivery, within thirty-six hours after the goods in respect of which said claim 
is made are delivered."

The notice in writing above mentioned was not given within thirty-six hours to 
the nearest station freight agent of the defendant, and hence the presiding 
justice is of the opinion that no recovery can be had by plaintiff, except for 
the one car load which was never delivered. I cannot assent to that proposition 
under the established facts appearing in this case. Courts of law should enforce 
the common-law obligations of common carriers with rigor, and should modify them 
only with reluctance and upon necessity. (Express Company v. Caldwell, 21 Wall., 
266.) The defense set up in the fifth clause of the answer, now relied upon by 
the defendant, does not, in any respect, go to the merits of the controversy 
between the parties, except as it is founded upon this forfeiture clause of the 
printed conditions indorsed upon the way-bill. But even this defense is not 
sufficiently alleged to enable the defendant to avail itself of the clause in 
question. The allegation is, "and this defendant alleges, upon information and 
belief, that the notices required by said agreements were never given as thereby 
required."

There is no allegation that no notice was served within thirty-six hours from 
the time of the delivery of the freight at the end of its journey, to the 
plaintiffs, except inferentially and argumentatively. It is true, that if the 
notice was never given, it could not well have been given within thirty-six 
hours, but the question is one of strict defense and the parties will be held to 
accurate averments. A plea of the ten-year statute of limitations would cover 
the shorter statute of six years, yet it would be insufficient to enable the 
defendant, under such a plea, to avail himself of the shorter statute in the 
proof. The objection must be specifically set up. In this instance the defendant 
has not alleged specifically that the notice required was not given within 
thirty-six hours, as it ought to be required to do before permitting a defense 
of this description to discharge the defendant from liabilities. The allegation 
of the answer is "that the notices required by said agreements were never given 
as thereby required." This may, and it probably does, refer only to the omission 
of the plaintiffs' assignors to give "the particulars of the claim for said 
loss," etc.; or it may mean that the notice in writing was not given to the 
station freight agent nearest to the place of delivery, but to some other 
station agent. At all events in setting forth this unconscionable forfeiture of 
the plaintiffs' property rights and the defendant's consequent exemption from 
liability, the defendant has not unequivocally placed itself clearly on the 
thirty-six-hours clause. By not so making the allegation of the breach of the 
condition this technical defense was waived. But, further, more, the answer, as 
it stands, is not true, because the claim was, in fact, presented to the 
defendant by letter before the action was brought, though not within the thirty-
six hours.

Three of the shipments were made on the 18th day of April, one on the 20th of 
April and one on the 26th of April, all in the year 1881. The usual time for 
transporting potatoes, the distance assumed to be carried by the defendant, was 
from four to six days. All the damages sustained by the plaintiffs for the 
negligence of the defendant was by reason of the detention of the several cars, 
and not by reason of any injury inflicted after their arrival at the 
destination, except, in one instance, where the car was never attempted to be 
delivered to the plaintiffs. On the 21st day of May, 1881, the plaintiffs' 
assignors wrote a letter to the defendant, in which they stated that the 
potatoes were detained, and had not arrived; and that it was causing them heavy 
loss; and that they intended to look to some one to pay the damages. Upon the 
receipt of that letter, and on May 25, 1881, the defendant made this 
communication to the plaintiffs' assignors:

"GRAND TRUNK RAILWAY OF CANADA, "Assistant General Freight Agent's 
Office "(Kingston, East).
"Montreal, May 25, 1881, "Gentlemen.—Your favor of the 21st at hand. I am sorry 
with regard to the detention of your potatoes. No doubt you are aware that this 
has arisen through causes over which we had no control, namely, the strike of 
railway employees in Chicago.
"Yours truly,
"GEORGE B. REEYE,
"A. G. F. A.

"Messrs. J. H. Shanley & Co., 183 East Main St., Rochester, N. Y."

All of these cars of freight, with the exception of the car which was lost, had 
arrived at their destination at the time of the writing of the letter by Shanley 
& Co. to the defendant; that letter, though its contents are doubtless 
imperfectly given, owing to the refusal of the defendant to produce it, is broad 
enough, under the circumstances, to cover all claims to damage which Shanley & 
Co. had sustained by reason of the delays in the transportation, and the 
defendant manifestly so regarded it; for instead of placing its denial of 
liability upon the ground now sought to be set up in its behalf, or on the 
ground of insufficiency of details of the claim, the defendant placed it wholly 
upon the proposition that it was absolutely absolved from liability by reason of 
the labor strikes at or near Chicago, which claim was wholly untenable. This, 
too, was a waiver of the condition; that a waiver may be made by not insisting 
upon its fulfillment, or by circumstances, is abundantly established by 
authority.

In the case of Hermann v. Niagara Fire Insurance Company (100 N. Y., 411), the 
policy required notice of a loss to be served forthwith on the company. It 
accepted final proof of loss, without objection that this condition had not been 
complied with, basing its refusal to pay on the ground that the policy had been 
canceled. It was held that a strict compliance with the provision had been 
waived. In the case of Griffey v. The New York Central Insurance Company (100 N. 
Y., 417) there was a like provision in the policy that notice of any loss should 
be given forthwith, and it was held that if the holder gave notice without 
unreasonable delay he was in time. So in the case of Barnum v. Merchants' Fire 
Insurance Company (97 N. Y., 188), the assured was required by the policy to 
produce, with the proofs of loss, a certificate of a magistrate or notary public 
most contiguous to the place of the fire, and not concerned in the loss, stating 
certain particulars in reference thereto. The certificate accompanying the 
proofs was of a notary residing within 400 feet of the fire. It appeared, 
however, that there was another notary who lived nearer. No defect in this 
respect was pointed out by the defendant until after the commencement of the 
action. It was held that it was then too late to raise the objection. In the 
case of Ames v. New York Union Insurance Company (14 N. Y., 253) it appeared 
that the proofs of loss were required to be furnished within thirty days after 
the fire, and the company had ninety days thereafter in which either to pay or 
to object to the sufficiency of the proofs. If objection to the proofs was made, 
it was competent for the insured to supply any defect by further proof. By the 
twelfth condition of the policy, any action thereon was required to be brought 
within six months after the loss. Thus it will be seen that the company could, 
and in that particular instance did, actually so manipulate the ninth and 
twelfth conditions printed in its policy that the plaintiff would be required to 
furnish further proofs of loss, so as to be satisfactory to the insurance 
company, at a time beyond the six months limited by the twelfth clause, provided 
the company insisted upon the ninety days which was accorded it in which to pay 
the loss, and this would so tide the matters over the short statute of 
limitations of six months that no action could finally be brought upon the 
policy. It was held that the action might be maintained after the expriation of 
the six-months limitation.

Moreover, the condition in question, even though not waived and pleaded, is not 
available to the defendant under the circumstances, as the referee has properly 
held. It was not intended by the officers of the company to apply, when the 
agreement of the company was to transport freight so far from the place of 
shipment and beyond the defendant's line. The time limited, in which to 
ascertain the particulars of the loss and place them before the company, was 
palpably too short to enable the owners to comply therewith, when deliveries 
were made so far off. The plaintiffs cannot be bound by a clause on the back of 
the shipping bill, which, apparently by inadvertence, had not been struck out or 
adapted to long hauls over other railways than its own, and to deliveries at 
great distances from its western terminus, under a special contract which was 
outside of the company's general business and against its printed regulations.

In the case of Jackson v. The St. Paul Fire and Marine Insurance Company (99 N. 
Y., 124) the plaintiff, who was the receiver of the Patterson Fire Insurance 
Company, brought an action upon a policy of reinsurance taken out by the 
Patterson company upon certain property in California. The blank form which was 
used in the policy of reinsurance was that of the ordinary policy of insurance, 
and contained the condition that no action should be begun thereon until after 
an award had been made, as specified in the policy, fixing the amount of the 
claim, nor unless the action was begun within twelve months after the loss. It 
was held that the condition had application to the contract of primitive 
insurance only, and not to a contract of reinsurance. This case is sufficient 
authority for us to hold that the mere circumstance of the existence on the back 
of a contract of affreightment of a condition does not work a forfeiture in 
cases where manifestly it was not intended to apply, and where it remained only 
on account of the inadvertence of parties to strike out, so as to conform to an 
agreement which was not contemplated by the author of the blank form. I think 
the judgment was right, and that it should be affirmed.

Dwight, J., concurred.

Barker, P. J. (dissenting):

In disposing of this case the referee, in effect, held, as matter of fact and of 
law, that the defendant received and transported the potatoes, at the request of 
the owners, without any discharge or release from the duties or liabilities 
imposed by law upon common carriers of merchandise; that no special contract was 
entered into between the shipper and the carrier, except as to price of 
transportation. If his conclusions in this respect are sustained by the 
evidence, then we are unable to see why the judgment should not be affirmed.

The defendant contends, that at the time the property was delivered for 
shipment, a special contract was entered into between it and the owner, by the 
terms of which the owner released it from all claim for damages arising from 
particular causes set out in the written agreement, which the referee failed to 
observe in awarding damages to the plaintiff, and for this reason the judgment 
should be reversed.

This action relates to five separate and distinct shipments, and it was held by 
the referee that the defendant failed to perform its agreement as to all of 
them. All the legal questions presented for our consideration arise upon the 
facts and circumstances connected with the particular shipment made on the 
eighteenth day of April, at Brockville, as those connected with the other 
shipments are not materially different. This car load was delivered to the 
defendant by Da Brule, of whom Shanley & Co. had purchased the same, who, at the 
time of the delivery notified the defendant's station agent that they were to be 
shipped to Shanley & Co., and thereupon Du Brule filled up and signed with his 
own hand, and delivered to the station agent, a blank shipping note kept and 
supplied by the defendant to shippers for that purpose, which, in substance, was 
a request to defendant to ship said potatoes, subject to the terms and 
conditions printed on the back of said shipping note, which terms were assented 
to as the basis upon which the defendant's bill of lading was delivered. At the 
same time the station agent delivered to Du Brule a bill of lading, who attached 
it to his own draft, drawn on Shanley & Co., for the balance due him for the 
purchase-price of the potatoes, which was forwarded for collection, and the same 
was paid a few days thereafter. Neither party put the bill of lading in evidence 
on the trial or proved its contents. 

As bearing on the question whether the owner of the property was bound by the 
conditions of the shipping note delivered to the station agent, the referee made 
the following finding, viz.: "Six. That said shipment bill was so made by said 
Du Brule and delivered to said defendant without the knowledge or consent of 
said J. H. Shanley & Co., and without request or requirement at the time of said 
defendant or its station agent, but in conformity with a general requirement or 
custom of defendant in the receipt of goods for transportation, known to said Du 
Brule from the transaction of similar business with said defendant theretofore 
on his own account. But said J. H. Shanley & Co. then knew it to be the 
universal custom of railroad companies, so far as their experience went, to 
require shipping bills to be executed by the shipper containing the terms and 
conditions of shipment, upon the delivery of potatoes or similar goods to such 
companies for transportation."

Upon the facts and circumstances thus narrated, which are the material ones 
bearing on the case, the question is presented whether Du Brule had authority, 
as the agent of the owner, to make this contract, fixing the terms and 
conditions of the defendant's liability as carrier. As a general rule, the agent 
to whom the owner intrusted the goods for delivery to the carrier is to be 
regarded as having authority to stipulate as to the terms of transportation. 
(Redfield on Carriers, § 52.) The owner of the potatoes, after their purchase 
from Du Brule, left them in his charge for shipment, and the defendant was 
justified in treating him as the agent of the owner, and authorized to make and 
conclude a contract for the transportation.

The circumstance which has been mentioned that the defendant's station agent who 
received the property and issued the bill of lading, knew at that time that 
Shanley & Co. were the owners of the property, does not take the case out of the 
operation of the general rule. Shanley & Co. were not present at the time the 
shipment was made to act in their own behalf. The right of the carrier to 
negotiate for the terms of transportation with the person in charge of the 
property is based upon the fact that the owner is absent and has placed the 
property in charge of another, and not upon the circumstance that the carrier 
does not know who the owner of the property is. Du Brule was the only person 
present with whom the defendant's agent could make the necessary arrangement, 
and he stood towards the defendant, for this purpose, in the position of an 
owner. The special finding of the referee that the shipping note, signed by Du 
Brule, was delivered to the defendant without the consent or knowledge of 
Shanley & Co., we construe as a finding that they gave him no instructions 
whatever on this subject, and such was the fact, as the evidence discloses. This 
circumstance, therefore, may be passed as having but little, if any, bearing on 
the questions under consideration.

The plaintiff contends that before the property was delivered for shipment 
Shanley & Co. had made and concluded a contract with the carrier for the 
transportation, and that the goods were received under the terms of that 
arrangement, and for that reason the agreement made by Du Brule was 
unauthorized, and that the defendant cannot substitute and rely upon the latter 
contract as determining the rights of the parties. We think the evidence fails 
to support this contention. Some weeks before the goods were shipped or 
purchased Shanley & Co. requested the defendant's agent to give "the lowest 
rates on potatoes in car-load lots from Brockville (and other points) to East 
St. Louis," to which the agent replied, making rates, and the same was accepted 
by them. No other terms or conditions for the transportation of the property 
were agreed upon before shipment, nor were any negotiations had relative to the 
subject. The other terms and conditions of the contract were left for future 
arrangement, if either party should insist upon special terms and conditions 
different from those imposed by law upon common carriers of merchandise. At the 
time the goods were delivered the shipper had the option either to insist that 
the defendant should transport the goods without any special contract for the 
carriage or to assent to the terms proposed by the defendant. I am of the 
opinion, although it is not necessary to pass upon the question in disposing of 
this case, that the defendants might at any time, before any potatoes were 
delivered for transportation, withdraw the rates offered and make other rates if 
they were such as was demanded of all shippers of the same class of goods from 
and to the same points.

In view of the whole case, I have reached the conclusion that the goods were 
shipped under a special contract, assented to by the shipper's authorized agent. 
As indicating Du Brule's authority and control over the goods, it should be kept 
in mind that they were consigned to the Merchants' Bank of Canada by Du Brule, 
as consignor, and he received the bill of lading and attached the same to a 
draft which he drew in his own name on Shanley & Co , and. which he procured to 
be discounted and used the avails to pay the balance due him for the potatoes; 
and this draft Shanley & Co. honored on presentation. It thus clearly appears 
that Du Brule,, who signed the shipping note as consignor, had not made a full 
and unqualified delivery of the potatoes to his vendees at the time the bill of 
lading was delivered to him. This car-load was consigned to the bank, with 
instructions in the shipping note to advise Shanley & Co. on the arrival of the 
goods at the place of destination. An examination of the cases bearing on the 
question will show that the rule is well established that where the agent of the 
owner is charged by him with the duty of shipping goods, the carrier may regard 
him as fully authorized to make a valid and binding special contract, such as 
the owner might have made if he had been personally present conducting 
negotiations. (Nelson v. Hudson R. R. R. Co., 48 N. Y., 498.) In the case last 
cited the plaintiff purchased of dealers in the city of New York a mirror, and 
gave them instructions to ship the same to him by railroad to his home in 
Fulton, in this State. They shipped the same by the defendant's road, and made a 
special contract, by the terms of which the carrier was exempt from certain 
liabilities, which covered the injury to the property complained of. It was held 
that authority to deliver goods to a common carrier for transportation includes 
all the necessary and usual means of carrying the same into effect; that the 
consignor of goods to a distant consignee, who is the owner, is the agent of the 
latter for the purpose of shipping. A ruling to the same effect was made in 
Squire v. New Central and Hudson River Railroad Company (98 Mass., 239). In that 
case the owner of a cargo of live hogs placed them in the charge of an agent or 
servant to look after and care for them while in transit from Chicago to New 
York, without any authority specially conferred to make contracts for 
transportation with any of the connecting lines. When the hogs were loaded on 
the defendant's cars at its terminus, near Suspension Bridge, the agent or 
servant in charge made a special contract with the company as to the terms or 
conditions of transportation, and it was held that the contract was binding on 
the owners, for the reason that the person in charge was the only person with 
whom the carrier could make the arrangement, and that he stood in the place of 
the owner for this purpose, although he did not have express authority to make 
the agreement. A like ruling was made in the case of York Company v. Central 
Railroad Company (3 Wall., 113), and many other cases might be cited to the same 
effect.

Neither party put in evidence the bill of lading, nor was its contents proved on 
the trial. As it and the shipping note were both executed at the same time and 
simultaneously delivered, and related to the same subject-matter, they should be 
considered as constituting one agreement. We may not assume that the bill of 
lading contained any provision changing or modifying the terms or conditions 
contained in the written request to receive and ship the property, called in 
that instance a shipping note, or anything inconsistent with those provisions 
and conditions. A bill of lading is the written evidence of a contract of 
carriage of goods from one place to another for a stipulated price. (Covill v. 
Hill, 4 Denio, 323; 1 H. Black, 359.) When it was disclosed that a bill of 
lading had been prepared and delivered to the consignor at the time the goods 
were shipped, upon the terms proposed by the shipper, it seems reasonable to 
hold that it was incumbent upon the plaintiff to produce the bill or prove its 
contents as a part of their case. But, whether that be so or not, the instrument 
given in evidence, which was assented to by the carrier, must be regarded as 
constituting the contract between the parties.

Having reached the conclusion that the property was shipped under a special 
contract binding on the consignors, we have now to inquire whether the 
stipulations which it contains releasing the defendant from certain common-law 
liabilities as carriers is supported by a good consideration. In this State the 
law is well settled that a common carrier of merchandise may, by express 
contract, limit his common-law liability shielding him from damages occasioned 
by his negligence or that of his servants. (Dorr v. New Jersey S. N. Co., 11 
N.Y., 485; Mynard v. Syracuse, etc., R. R. Co., 71 id., 180; Bissell v. N. Y. C. 
R. R. Co., 25 id., 442; Nicholas v. N Y. C. R. R. Co., 89 id., 370.) Without 
some proof on the subject, we must assume that by the laws of Canada the 
defendant might, for the service it undertook to perform, charge a fair and 
reasonable compensation. This is the rule which prevails in this State.

In discussing the question as to what would constitute a good consideration to 
support a release from those duties and obligations which the law imposes on 
common carriers, Earl, J., said in the case of Nelson v. The Hudson River 
Railroad Company (48 N. Y., 511): "They must carry for all upon equal terms, 
charging one no more than another for freight or property delivered under like 
circumstances. But they are not bound to carry all kinds of property for the 
same freight. They may charge ordinary rates for some kinds of property exposed 
in the carriage to ordinary hazards, and extra rates for property exposed to 
extra hazards. As railroad companies are bound to carry freight without any 
contract limiting their liability, their mere agreement to carry does not 
furnish a consideration for the agreement to limit their liability; nor does 
their agreement to carry for the price which they would be authorized to charge, 
in case their liability was not limited, but it is a sufficient consideration if 
they agree to carry for a reduced compensation because their liability is 
limited."

In that case it was held that a good consideration was proved to support a 
release from liability because the contract, on its face showed that the 
railroad company was to carry at "tariff rates," as the court could not say, in 
the absence of proof, that "tariff rates" meant the full rate which could be 
lawfully charged by the defendant for the carriage of the kind of goods 
transported in that case.

In view of all the facts of the case before us, we think that the special rate 
at which the potatoes were carried, being the lowest rate made by the defendant 
for this class of freight, at the particular request of the shipper, was, in 
fact, a less rate than the defendant was authorized to charge for the 
transportation of the potatoes beyond the line of its own road.

In York Company v. Central Railroad Company (3 Wall., 107) it was held, that 
when there was an agreement limiting the liabilities of the carrier, it would be 
presumed, in the absence of proof to the contrary, that it was upon the 
consideration of a reduced rate for the carriage. It appeared in that case that 
the goods were to be carried at a fixed rate, which was stated in the bill of 
lading, and the court said that the consideration thus expressed was sufficient 
to support the entire contract, including the release by the consignor, which 
exempted the carrier from certain risks. We have reached the conclusion, based 
upon the authorities cited, that the special contract was based upon a good 
consideration and is valid and binding alike upon the carrier and the defendant.

The referee found, as a fact, that the transportation of the potatoes was 
negligently hindered and delayed by the defendant upon, its own road, and also 
upon the connecting road, and in consequence of such delay and the long 
confinement of the potatoes in the car they were greatly depreciated in their 
market-value by heating and sprouting. On reading the evidence bearing on this 
question, we see no reason for disagreeing with the referee's conclusion. The 
usual and customary time for transporting goods of this class, perishable in 
their nature, was six days, and the time actually taken was eighteen or twenty 
days.

In estimating the plaintiff's damages, the referee made allowance for 
depreciation in quality and also for decline in the market-price of the 
potatoes, which, upon the shipment now under consideration, with the interest 
thereon, amounted to the sum of $399.26. The remaining and important question 
is, does the release from liability, contained in the contract of shipment, 
constitute either a full or partial defense for the losses sustained by the 
owners, for which damages were awarded to the plaintiff? It is provided in the 
contract that the responsibility of the defendants shall terminate when the 
goods shall have arrived at the place to be reached on its own road where it 
connects with other roads, and that the defendant shall not be liable for 
damages to the property arising from delays which occurred on the connecting 
roads. The defendant insists that this term of the agreement shields it from so 
much of the damages which the owner of the goods suffered in consequence of the 
delays which occurred on the other lines.

The defendant could legally contract to carry and deliver the property at places 
beyond the terminus of its own road, and from the facts and circumstances of 
this case it is established, beyond all dispute, that the defendant agreed to 
carry and deliver the goods at East St. Louis. {Condict v. The Grand Trunk R. 
Co., 54 N. Y., 500.) The connecting lines engaged by the defendant to carry the 
goods to their destination were the agents of the defendants, and it is liable 
for their negligence resulting in damages to the owners. The question of 
liability for damages, as presented in this case, is to be treated as if the 
delays all occurred on the defendant's own road. As the delays occurred in 
consequence of the defendant's own negligence, the release from liability does 
not protect the defendant, as the contract does not, by its own terms or 
necessary implication, exempt it from damages arising from its own negligent 
acts or those of its agents or servants. The clause of the contract relied upon 
reads as follows: "3. Nor will the company be liable for damages occasioned by 
delays caused by storms, accidents, over-pressure of freight or unavoidable 
causes, or by the weather, wet, fire, heat, frost, or delay of perishable 
articles, or from civil commotion."

The cases of Mynard v. Syracuse, etc., Railroad Company (71 N. Y., 180) and 
Nicholas et al v. New York Central and Hudson River Railroad Company (89 id., 
370) may be referred to as establishing a rule of construction applicable to the 
provisions contained in the clause quoted, showing that they do not shield the 
defendant from the damages arising from its own act of negligence, or those of 
its servants.

The defendant further contends that it is exempt from such damages as the 
plaintiff suffered by loss of market on account of delays under another 
provision of the contract which provides "that the company shall not, in any 
case, or under any circumstances, be liable for loss of market."

It is argued by the learned counsel for the defendant, in support of his 
position, that the rule of law that a carrier is responsible for negligence, 
unless its contract by its exact terms release it from the consequences of its 
negligence, has no application to the measure of damages; that such rule relates 
to and affects only the liability of the carrier. A common carrier is not liable 
for loss of market unless he is guilty of negligence in delaying the 
transportation. If, however, he should contract to deliver the freight within a 
fixed time, he is liable for damages arising from non-delivery within the 
stipulated period, including loss of market, although the non-performance did 
not occur from any fault of his own. (Harmony v. Bingham, 12 N. Y., 99.) Within 
the rule laid down in the cases already cited, we think the exemption does not 
include a case where the loss of market arises from a negligent delay in 
transportation. The question presented should be treated the same as if the only 
claim for damages was the one arising from the loss of a market. In such a case 
it is plain the question would not be simply one of the measure of damages, but 
the primary inquiry would be whether the owner has a right of action arising out 
of a carrier's negligence, and if that should be established, then he might 
recover as damages the loss sustained by reason of the decline in the market at 
the place of destination. As the release does not, in terms, apply to a case 
where the loss of market arises from the defendant's negligence, the contract 
should be so construed as to make the release in this respect applicable to 
cases where the loss of market arises from other causes, such as a failure to 
deliver within a stipulated time.

The defendant pleaded, in bar of a recovery for the cause of action set out in 
the complaint, that no written notice was served of any claim for damages as 
required by the twelfth clause printed on the back of the shipping bill, which 
is as follows: "12. That no claim for damage to, loss of or detention of any 
goods for which this company is accountable shall be allowed unless notice in 
writing and the particulars of the claim for said loss, damage or detention are 
given to the station freight agent nearest the place of delivery within thirty-
six hours after the goods in respect of which said claim is made are delivered."

The defendant requested the referee to find that no notice in writing, making 
claim for loss, damage or detention, was given to the station agent at the place 
of delivery within thirty-six hours after the delivery of the potatoes. This the 
referee refused to find, and assigned as a reason for his refusal that the 
clause requiring the notice to be served did not apply to shipments beyond the 
terminus of the defendant's own road. In this conclusion I think the learned 
referee erred. In terms, the provisions of the clause are not limited in their 
application to cases where the freight is to be delivered at points on the 
defendant's own road, and the purpose of requiring a notice of loss to be served 
is as applicable to a case where the goods are to be delivered beyond the 
defendant's own line as when they are to be delivered at some point on its own 
road. As before stated, my conclusion is that the contract required the 
defendant to transfer and deliver the goods to the consignee in the city of St. 
Louis, and, for this reason, I think the condition requiring notice to be given 
of the loss, when one is claimed, should be held to include the place of 
ultimate destination. The evidence would support the finding that no claim of 
loss was given by the consignees as required by the agreement. In disposing of 
the questions already considered an attempt has been made to show that a special 
contract was made and entered into, and that the same was valid and binding on 
the consignees, and if we are correct in that conclusion, the provision of the 
contract requiring notice of loss to be served must defeat a recovery, if on a 
new trial it should be found that the requisite notice was not served. This is 
one of the terms of an entire contract, founded upon a good consideration, and 
it is as obligatory upon the shipper as any other provision of the agreement. In 
this State it is now well settled that the shipper and carrier may, as between 
themselves, insert in their agreement for the transportation of freight any 
condition which does not contravene public policy or which is not forbidden by 
law. If the validity of this condition was made to depend upon whether it was a 
reasonable, one or not, I should be inclined to hold that it is. The parties 
here have made it a matter of specific agreement, based upon a good 
consideration, and the question of the reasonableness of the stipulation has 
been placed by the action of the parties beyond our inquiry.

In view of the perishable character of the property, it was reasonable for the 
carrier to require that a notice of a claim for damages should be served within 
the time mentioned after the goods were delivered, for the reasons fully stated 
in the cases of Express Company v. Colwell (21 Wall., 264), and Lewis v. The 
Great Western Railway Company (5 Hurl & Norman, 367). The car-load of potatoes 
shipped on the eighteenth of April at Preston, containing 401 bushels of 
potatoes, the referee found had never been delivered, and that the plaintiff's 
damages, with the interest thereon, amounted to $545.60; and I am unable to 
discover any reason why the judgment should not be affirmed as to that item of 
damages. The other shipments were made under contract of the same nature and 
character of the one we have considered, and the recovery for damages for the 
losses sustained on each of those shipments, by reason of the negligent delay in 
delivery, cannot be sustained, for the reason that no notice of the loss was 
served.

The judgment should be reversed and a new trial granted before another referee, 
unless the plaintiff stipulates to reduce the judgment to the sum of $545.69; 
and if such stipulation is served within thirty days, then the judgment should 
be modified accordingly, and as modified affirmed, without costs of this appeal 
to either party.

Judgment affirmed.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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