0 by the carrier's agent that it is a mere receipt, or where it is given to him in answer to his demand for a "receipt." Or, if the circumstances of the case are such as to put the shipper off his guard and to lead him to the belief that the instrument is not a bill of lading, as in the cases where the contract of carriage had been already made by a prior parol agreement and the bill of lading is given to the shipper afterwards and he supposes it to be a mere receipt ;3 or where the circumstances are such that he may well have presumed that the bill of lading would not differ in terms from those previously understood; or where the goods are already out of the shipper's power and he objects to the proposed limitation; or if the limitations of the carrier's liability are inserted in such a manner as not to attract the attention of the shipper, as if they are printed in type so small as to be inconspicuous or illegible. In Fibel v. Livingston, however, a receipt was held a contract, although taken by a foreigner ignorant of the language in which it was printed and to whom no explanation of its terms was vouchsafed. In some of the states a different rule, however, prevails. In Wisconsin, possession by a shipper of a receipt restricting the liability of the carrier is only prima facie evidence of his assent to the restrictions and may be contradicted by parol evidence. If it appeared that he examined the receipt and knew its con Simmons v. G. W. Ry. Co., 2 233; S. C. 72 ib. 90; Bostwick v. B. C. B. N. S. 620. & O. R. R. Co., 55 Barb. 137. 2 Kirkland v. Dinsmore, 4 N. Y. S. C. 304; Woodruff v. Sherrard, 9 Hun (N. Y.), 322. 3 Bostwick v. B. & O. R. R. Co., 45 ib. 712; King v. Woodbridge, 34 Ver. 565; Missouri Pac. Ry. v. Beeson, 30 Kans. 298; Strohn v. D. & M. R. R. Co., 21 Wis. 554; but see Swift v. Pac. Mail St. Co., 106 N. Y. 206; Blossom v. Dodd, 43 ib. 264; Madan v. Sherrard, 42 N. Y. Supr. Ct. Rep. 353; Woodburn v. Railroad Co., 40 Fed. Rep. 731; Germania F. I. Co. v. M. C. R. R. 7 Hun (N. Y.), 4 Buckland v. Adams Exp. Co., 97 Mass. 124; Perry v. Thompson, 98 ib. 249. 5 Bostwick v. B. & O. R. R. Co., 45 N. Y. 712. 6 Cooley, J., in McMillan v. Mich. R. Co., 16 Mich. 79. 7 Verner v. Switzer, 8 Casey (Pa.), 208. 8 Blossom v. Dodd, 43 N. Y. 264; Madan v. Sherrad, 73 ib. 829. 9 64 Barb. 179. See also Warhus v. Savings Bank, 21 N. Y. 543. tents and did not offer to return it or give notice of his dissent, this would seem to be conclusive evidence of assent.1 § 152. In Massachusetts assent must be shown. It is not necessarily to be inferred from knowledge by the shipper of the restrictions of liability. The evidence must go further and show that the terms on which the carrier proposed to carry the goods were adopted as the contract between the parties according to which the service was to be rendered. In Perry v. Thompson, it was held that no inference of consent to the limitations of the carrier's liability by the bill of lading could be drawn from continued use of the same printed form in former transactions between the same parties. § 153. In Illinois no presumption of the assent of the shipper to the terms of the bill of lading can arise from the mere receipt of it by him, or from notice to him of its contents. Assent must be affirmatively shown' and while it is not necessary that the shipper should sign the bill, there must be express assent to its terms, or circumstances which clearly show assent. Assent is a question of fact for the jury to determine from all the circumstances attending the giving of the receipt. § 154. In Dakota it is provided by statute that a consignor, by accepting a written contract for carriage with knowledge 1 Boorman v. Am. Exp. Co., 21 Wis. 152; Strohn v. D. M. Ry. Co., ib. 554; Falvey v. N. T. Co., 15 ib. 129; The Sultana v. Chapman, 5 ib. 454; Morrison v. Phillips & Co., 44 ib. 405; White v. G. T. Co., 46 ib. 493. See also Detroit R. R. Co. v. Farmer's Bank, 20 ib. 127. 2 Buckland v. Adams Ex. Co., 97 Mass. 124. 8 98 Mass. 249. 4 M. D. T. Co. v. Joesting, 89 Ill. 152; W. T. Co. v. Newhall, 24 ib. 466; Erie R. Co. v. Wilcox, 84 ib. 239. 5 U. S. Ex. Co. v. Haines, 67 Ill. 137; M. D. T. Co. v. Leyser, 89 ib. 43; Anchor Line v. Knowles, 66 ib. 150; Anchor Line v. Dater, 68 ib. 368; Chicago, etc., R. Co. v. Montfort, 60 ib. 175; Ill. Cen. R. R. Co. v. Frankenberg, 54 ib. 88; Erie Ry. Co. v. Wilcox, 84 ib. 239. 6 M. D. T. Co. v. Leyser, 89 Ill. 43; M. D. T. Co. v. Theilbar, 86 ib. 71; American Merc. Union Ex. Co. v. Schier, 55 ib. 140; Field v. Chicago, etc., Ry. Co., 71 ib. 458; Adams Ex. Co. v. Haynes, 42 ib. 89; Ill. Cen. R. R. Co. v. Frankenberg, 54 ib. 88; Chicago, etc., R. Co. v. Montfort, 60 ib. 175; Boscowitz v. Adams Ex. Co., 93 ib. 523; Anchor Line v. Dater, 61 ib. 369; Adams Ex. Co. v. Stettaners, 61 ib. 184. See also legislation on this point in Illinois. of its terms, assents to the rate of hire and the time, place and manner of delivery therein stated, but that his assent to any other modification of the carrier's obligation contained in such instrument can only be manifested by his signature thereto.1 § 155. In Maryland, Georgia3 and Michigan, agreement to the terms of the bill of lading must be proven by the carrier, and cannot be presumed from acceptance of special rates of freight. So in Mississippi," where, if it is merely doubtful whether the consignor intended to waive her legal rights, it was held that public policy requires they should be presumed and upheld. § 156. In Gaines v. U. T. Co. the court of Ohio held that the principles of the law which create obligations ex contractu by an implied promise or constructive assent have no application to the contracts limiting the liability of a common carrier. To such limitation there must be express assent. Every intendment should be made in favor of the shipper where he takes a receipt for his property with restrictive conditions annexed and says nothing, that he intends to rely upon the law for the security of his rights. There must be evidence of the shipper's assent, else the presumption is that he relies on his common law rights. The question of assent is entirely one of fact for the jury. § 157. A limitation of a carrier's liability contained in a notice indorsed on a bill of lading is held, in the Federal Courts, to be no part of the contract and is of no avail in varying the shipper's rights, and in Western Transp. Co. v. Newhall, the 8 1 Dak. T. Civ. Code, § 1263; Hartwell v. North Pacif. Exp. Co., 5 Dak. T. 463. 2 B. & O. R. R. Co. v. Brady, 32 Md. 333; McCoy v. E. & W. T. Co., 42 ib. 498. 8 Wallace v. Sanders, 42 Ga. 486. 4 Am. Trans. Co. v. Moore (S. C. Mich.) 7 Am. Law Reg. O. S. 352; M. C. R. R. Co. v. Hale, 6 Mich. 257; Hartness v. G. W. R. Co., 2 Brown (Mich.), 80. But see McMillan v. Michigan Ry. Co., 16 Mich. 79. 5 Mobile & Ohio R. R. Co. v. Weiner, 49 Miss. 725. 6 South. Ex. Co. v. Moon, 10 George (Miss.), 822. 7 28 Ohio State, 418; P. C. & St. L. R. R. Co. v. Barrett, 36 ib. 448. 8 Brittan v. Barnaby, 21 How. (U. S. C. C.) 527; Ormsby v. U. P. R. R. Co., 4 Fed. Rep. (U. S. C. C.) 706; Ayers v. West. R. Co., 14 Blatchford (U. S. C. C.), 9. 9 24 Ill. 466; R. R. Co. v. Mf. Co., 16 Wall. 318. Court of Illinois hold that there is no distinction between such a notice and one printed in newspapers or by handbills and that a notice indorsed on the receipt forms no part of the contract. The rule in regard to notices indorsed on the bill of lading is the same in New York.' Where, however, the bill of lading refers in plain terms to the conditions indorsed upon it, the shipper, if he assented to the former, will be bound by the latter, especially where there is evidence aliunde showing his assent.3 § 158. The use of the same form of bill of lading in several transactions by the shipper is good evidence of knowledge of its terms and presumption of assent thereto. So is the fact that the owner of goods by himself or his clerk filled up the receipt. 1 Limburger v. Westcott, 49 Barb. 4 E. W. T. Co. v. Dater, 91 Ill. (N. Y.) 283; Sunderland v. West- 195. cott, 2 Sweeney (N. Y. S. C.), 260. 2 D. & M. R. R. Co. v. Farmer's Bank, 20 Wis. 122; Mayer v. G. T. R. Co., 31 U. C. C. P. 248. 3 Hartness v. G. W. Ry. Co., 2 Brown (Mich.), 80. See also Falkenberg v. Clark, 11 R. I. 279. 110 5 M. D. T. Co. v. Moore, 88 Ill. 136. 6 Boscowitz v. Adams Ex. Co., 93 Ill. 523; and see U. S. Ex. Co. v. Haines, 67 ib. 137. CHAPTER XI. EXECUTION OR ACCEPTANCE OF THE BILL BY AN AGENT OF THE SHIPPER, OR OF THE CARRIER. Authority of an agent, delivering goods | Bill executed by an agent of the carto the carrier, to bind the shipper, $159. Knowledge of an authorized agent as to manner of shipping, is the knowledge of the shipper, § 160. Rule in those states where assent to terms must be shown, § 161. Contract made by an agent in his own name benefits the real owner, § 162. A principal must adopt his agent's contract as a whole, § 163. Carrier having dealt with an agent caunot deny such agent's authority, $164. Where goods are shipped by a vendor or by an agent of the consignee, § 165. rier, § 166. Agent not authorized to sign bills for goods not actually received and such bills are void, § 167. Contrary rule obtains in certain courts, § 168. Agent of the carrier must be duly authorized to sign bills, § 169. Who are authorized, § 170. Who are not authorized, § 171. Instructions to carrier's agent do not bind the shipper, § 172. Effect of an agent's agreement to make immediate delivery, § 173. Limitations of agent's power to make a special contract, § 174. § 159. A CONTRACT with an agent about the business to which the agency relates is a contract with the principal and its validity is not affected by a limitation of the agent's authority of which the other contracting party had no notice.' Therefore, a carrier who receives goods is not required to investigate the authority of the person shipping them to make a contract limiting the carrier's liability and the general rule may be stated to be that the agent of a shipper has power to make a special contract with a common carrier limiting the latter's responsibility. The rule is based on the principle that an order to an agent to deliver goods to a carrier for transportation, includes all the necessary and usual means of carrying it into effect. It 1 Chouteaux v. Leech, 18 Pa. St. 224. 2 Moriarity v. Harnden's Exp., 1 Daly (N. Y.), 227. 3 Knell v. U. S. & Brazil S. S. Co., 1 Jones & Spencer (33 N. Y. Supr. Ct.), 423. |