v. Berry, 21 Ga. 526. And such was the rule established in Pennsylvania at an early date. Beckman v. Shouse, 5 Rawle, 179; Bingham v. Rogers, 6 Watts & S. 495; Atwood v. Reliance Trans. Co., 9 Watts, 87; Laing v. Colder, 8 Penn. St. 479; Camden & Amboy R. Co. v. Baldauf, 16 Penn. St. 67; Verner v. Sweitser, 32 Penn. St. 208; Farnham v. Camden & Amboy R. Co., 55 Penn. St. 53. In 9 Watts, 87, Gibson, C. J., expresses his disapprobation of the Pennsylvania rule, and so does Bell, J., in 8 Penn. St. 479. The English cases may be found reviewed in Wood's Browne on Carriers, p. 196 et seq.

46

In New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 382, the court, after discussing the right of a carrier to limit his common-law liability, says: 'But admitting the right thus to restrict his obligation, it by no means follows that he can do so by any act of his own. He is in the exercise of a sort of a public office and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned. And this is not to be implied or inferred from a general notice to the public limiting his obligation, which may or may not be assented to. He is bound to receive and carry all the goods offered for transportation, subject to all the responsibilities incident to his employment, and is liable to an action in case of refusal. And we agree with the court in the case of Hollister v. Nowlen, that if any implication is to be indulged from the delivery of goods under the general notice it is as strong that the owner intended to insist upon his rights and the duties of the carrier as it is that he assented to their qualification."

It is immaterial that the notice is printed on a ticket or check for baggage given to a passenger. Kansas City, etc., R. Co. v. Rodebaugh, 38 Kan. 45; Brown v. Eastern R. Co., 11 Cush. 97; Malone v. Boston & W. R. Co. 12 Gray 388; Limberger v. Wescott, 49 Barb. 283; Perkins v. New York Cent. R. Co., 24 N. Y. 196; Jones v. Voorhees, 10 Ohio, 145. In Railroad Co. v. Manufacturing Co., 16 Wall. 318, a notice printed on the back of a receipt for goods and referred to in the body of the receipt, was held to be equally ineffectual. In deciding the case the court says: "These considerations against the relaxation of the common-law responsibility by public advertisements apply with equal force to notices having the same object attached to receipts given by carriers on taking the property of those who employ them into their possession for transportation. Both are attempts to obtain, by indirection, exemption from burdens imposed in the interests of trade upon this particular business. It is not only against the policy of the law, but a serious injury to commerce to allow the carrier to say that the shipper of merchandise assents to the terms proposed in a notice, whether it be general to the public or special to a particular person, merely because he does not expressly dissent from them. If the parties were on an equality in their dealings with each other there might be some show of reason for assuming acquiescence from silence, but in the nature of the case this equality does not exist, and therefore every intendment should be made in favor of the shipper when 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.

"It can readily be seen if the carrier can reduce his liability in the way proposed he can transact business on any terms he chooses to prescribe. The

shipper as a general thing is not in a condition to contend with him as to terms, nor to wait the result of an action at law in case of refusal to carry unconditionally. Indeed such an action is seldom resorted to on account of the inability of the shipper to delay sending his goods forward. The law, in conceding to the carriers the ability to obtain any reasonable qualification of their responsibility by express contract, has gone as far in this direction as public policy will allow. To relax still further the strict rules of common-law applicable to them, by presuming acquiescence in the conditions on which they propose to carry freight when they have no right to impose them, would in our opinion work great harm to the business community."

Of course if the terms of a notice are assented to by a shipper, a binding contract is formed, in so far as such terms are just and reasonable. Buckland v. Adams Express Co., 97 Mass. 124; Fillebrown v. Grand Trunk R. Co., 55 Me. 462. It would seem if a carrier gives notice that he will carry under his common law liability at a specified rate which is reasonable, and that he will carry for a less rate under a restricted liability, the restrictions being just and reasonable, and a shipper, knowing the conditions offered, ships at the less rate, he should be deemed to assent to the terms of the notice, and to have accepted and agreed to the limitations. See Baltimore & O. R. Co. v. Brady, 32 Md. 333; Wheeler on Modern Law of Carriers, p. 231. This, however, would be a limitation of liability by contract and not by notice.

10. A limitation of liability can only be effected by a special contract assented to by the shipper or passenger.-This is the doctrine laid down by the cases cited in section 3 of this note, and also by the cases cited in the last section. It is a doctrine that necessarily follows from the propositions that a carrier may limit his liability at all, and that he may not do so by notice or act of his own. In New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 383, it is said that the burden is on the carrier to show a special contract, and that "nothing short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the law has annexed to his employment. The exemption from these duties should not depend upon implication or inference, founded on doubtful and conflicting evidence, but should be specific and certain, leaving no room for controversy between the parties."

11. What will constitute a special contract-acceptance of receipt or bill of lading containing limitations of liability-assent of shipper. The same general principles, of course, apply to contracts with carriers as to other contracts. The same elements are essential to create the contract and the same causes will vitiate it. To constitute a contract the minds of the parties must meet,-the terms proposed on one side must be accepted on the other. It is this element of acceptance or assent, which forms the principal element of difficulty in contracts with carriers. It is the almost universal practice for carriers to issue receipts or bills of lading for goods received for transportation, which purport to express the terms and conditions upon which the service is to be performed. These terms and conditions usually stipulate for various limitations of the common law liability of the carrier. It is gener ally held that the acceptance of such receipt or bill of lading by the shipper, without objection or dissent, and in the absence of any fraud or imposition on

the part of the carrier, constitutes a special contract, binding upon the parties according to the terms and conditions therein expressed, in so far as the same are just and reasonable, or not opposed to public policy. Steele v. Townsend, 37 Ala. 247; Alabama Great Southern R. Co. v. Little, 71 Ala. 611; Jones v. Cincinnati, etc., R. Co., 89 Ala. 376; St. Louis, etc., R. Co. v. Weakly, 50 Ark. 397; Overland Mail & Express Co. v. Carroll, 7 Col. 43; Lawrence v. New York, etc., R. Co., 36 Conn. 63; Galt v. Adams Express Co., 4 McA. & Mack. 124; Mulligan v. Illinois Cent. R. Co., 36 Iowa, 181; Robinson v. Merchants' Dispatch Trans. Co., 45 Iowa, 470; Kallman v. U. S. Express Co., 3 Kan. 205; Missouri Pac. R. Co. v. Beeson, 30 Kan. 298; Louisville & N. R. Co. v. Brownlee, 14 Bush. 590; Brehme v. Adams Express Co., 25 Md. 328; Grace v. Adams, 100 Mass. 505; Gott v. Dinsmore, 111 Mass. 45; McMillan v. Michigan Southern, etc., R. Co., 16 Mich. 79; Christenson v. American Express Co., 15 Minn. 270; Merrill v. American Express Co., 62 N. H. 514; Huntington v. Adams Express Co., 4 Hun, 66; Steinweg v. Erie R. Co., 43 N. Y. 123; Belger v. Dinsmore, 51 N. Y. 166; Steers v. Liverpool, etc., Steamship Co., 57 N. Y. 1; Wescott v. Fargo, 61 N. Y. 542; Kirkland v. Dinsmore, 62 N. Y. 171; Germania Fire Ins. Co. v. Memphis, etc., R. Co., 72 N. Y. 90; Gaines v. Union Trans. & Ins. Co., 28 Ohio St. 418; Newberger v. Howard's Express, 6 Phila. 174; Piedmont Mfg. Co. v. Columbia, etc., R. Co.. 19 S. C. 353; Dillard v. Louisville & N. R. Co., 2 Lea, 283; Merchants' Dispatch Trans. Co. v. Block, 86 Tenn. 392; Ryan v. M. K. & T. R. Co., 65 Tex. 13; Baltimore & Ohio R. Co. v. Rathbone, 1 W. Va. 87; Boorman v. American Express Co., 21 Wis. 152; Morrison v. Phillips & Colby Construction Co., 44 Wis. 405; Van Schaack v. Northern Trans. Co., 3 Biss. 394; Wertheimer v. Pennsylania R. Co. 17 Blatch. 421.

Some of these cases say that the acceptance of the receipt without objection is prima facie evidence of assent, but most of them hold that it is conclusive, and that, too, whether the shipper read it or knew its contents. This is particularly ruled in the following; Louisville & N. R. Co. v. Meyer, 78 Ala. 597; St. Louis, etc., R. Co. v. Weakly, 50 Ark. 397; Lawrence v. New York, etc., R. Co., 36 Conn, 63; Mulligan v. Illinois Central R. Co., 36 Iowa, 181; Robinson v. Merchants' Despatch Trans. Co., 45 Iowa, 470; Louisville & N. R. Co. v. Brownlee, 14 Barb. 590; Grace v. Adams, 100 Mass. 505; Gott v. Dinsmore, 111 Mass. 45; McMillan v. Michigan Southern R. Co., 16 Mich. 79; Kirkland v. Dinsmore, 62 N. Y. 171; Zimmer v. New York Cent. (N. Y.), 33 N. E. Rep. 642; Johnston v. Richmond & D. R. Co. (S. C.), 17 S. E. Rep. 512. By accepting the receipt without reading it, it is said that the shipper elects to trust the carrier, and signifies his willingness to take such terms as he offers. Louisville & N. R. Co. v. Meyer, 78 Ala. 597.

In Grace v. Adams, 100 Mass. 505, it is said: "The receipt was delivered to the plaintiff as the contract of the parties; it is in proper form, and the terms and conditions are expressed in the body of it in a way not calculated to escape attention. The acceptance of it by the plaintiff, at the time of the delivery of his package, without notice of his dissent from its terms, authorized the defendants to infer assent by the plaintiff. It was his only voucher and evidence against the defendants. It is not claimed that he did not know, when he took it, that it was a shipping contract or bill of lading. It was his duty to read it.

The law presumes, in the absence of fraud or imposition, that he did read it, or was otherwise informed of its contents, and was willing to assent to its terms without reading it. Any other rule would fail to conform to the experience of all men. Written contracts are intended to preserve the exact terms of the obligations assumed, so that they may not be subject to the chances of a want of recollection or an intentional misstatement. The defendants have a right to this protection, and are not to be deprived of it by the willful or negligent omission of the plaintiff to read the paper'

And from Kirkland v. Dinsmore, 62 N. Y. 171, we quote upon the same point, as follows:

"Can it be said that he is not bound by and did not assent to the limitations in the contract because he took the paper without reading it, and did not know its contents. The conditions are not unreasonable or unusual. They relieved the defendant from the stringent liability of an insurer, and on the other hand, no price for the service having been agreed upon, the plaintiff was only bound to pay for the carriage a compensation measured by the value of the service in view of the diminished risk assumed by the company. It is true that a contract implies an assent to its terms by the contracting parties, but a party may assent expressly or by implication. (Byles, J., Van Tall v. South Eastern Railway Co., 104 Eng. Com. Law, 75.) He cannot escape from the terms of a contract, in the absence of fraud or imposition, because he negligently omitted to read it, and when the other party has a right to infer his assent, he will be precluded from denying it to the other's injury The plaintiff is, we think, in that position. The contract was one which the parties might lawfully make. The defendant had a right to infer from the plaintiff's acceptance of the receipt without dissent that he assented to its terms, and now after a loss has occurred it is too late to object that he is not bound. If he had objected at the time, the defendant would have been entitled to exact, as a condition of carrying the parcel, a compensation equivalent to the risk of insurers. The circumstances imposed upon the plaintiff the duty to read the receipt."

In Louisville & N. R. Co. v. Brownlee, 14 Bush. 590, it is said that if the shipper does not intend to be bound by the terms of the receipt, he should return it to the carrier, after he has had time to ascertain its contents, and give notice of its non-acceptance. And in Germania Fire Ins. Co. v. Memphis, etc., R. Co., 72 N. Y. 90, it is said that the shipper's dissent should be made known before the goods start on their journey.

12. Illinois cases-acceptance of receipt not proof of assent to its terms-It has been held in a series of cases in Illinois that the acceptance of a receipt or bill of lading by the shipper does not make it binding upon him without proof that he had knowledge of its contents and assented thereto. Adams Express Co. v. Haynes, 42 Ill. 89; Illinois Central R. Co. v. Frankenberg, 54 Ill, 88; Am. Merchants' Union Exp. Co. v. Sohier, 55 Ill. 140; Adams Express Co. v. Stettaners, 61 Ill. 184; Anchor Line v. Knowles, 66 Ill. 150; U. S. Express Co. v. Haines, 67 Ill. 137; Anchor Line v. Dater, 68 Ill. 369; Oppenheimer v. U. S. Express Co., 69 Ill. 62; Field v. Chicago &c., R. Co., 71 Ill. 458; Erie R. Co. v. Wilcox, 84 Ill. 239; Merchants' Dispatch Trans. Co. v. Leyser, 89 Ill. 43; Merchants' Dispatch Trans. Co. v. Joetting, 89 Ill. 152;

Boscowitz v. Adams Express Co., 93 Ill. 523; Block v. Wabash &c., R. Co., 111 Ill. 351; Wabash &c., R. Co. v. Jaggerman, 115 Ill. 407.

Although the general rule in this state is that there must be proof that the shipper had knowledge of the contents of the receipt and that he assented to its terms, yet it has been held that the acceptance of a receipt with the knowledge of its terms binds the shipper. Adams Express Co. v. Haynes, 42 Ill. 89. Where the receipts were filled out by the shipper or his clerk, knowledge and assent were presumed. Field v. Chicago &c., R. Co., 71 Ill. 458; Oppenheimer v. U. S. Express Co., 69 Ill. 62; and see Wabash &c., R. Co. v. Jaggerman, 115 Ill. 407. But the fact that a receipt is filled out by the shipper's clerk is not conclusive evidence of knowledge or assent. The shipper may show, notwithstanding, that he did not know or assent to the receipt. Boscowitz v. Adams Express Co., 93 Ill. 523. If the shipper reads the receipt and makes no objection, his assent will be presumed. Merchants' Dispatch Trans. Co. v. Joetting, 89 Ill. 152. In Anchor Line v. Knowles, 66 Ill. 150, it seems to be held that, in the absence of evidence to the contrary, knowledge or assent may be presumed from acceptanee. If the shipper, being able to read and write, signs the receipt, without being misled or deceived, he will not be permitted to say that he did not know its contents. Block v. Wabash &c., R. Co., 111 Ill. 351.

13. Other courts which hold that acceptance of receipt does not prove assent, or that it is only prima facie evidence thereof and may be rebutted.-In Adams Express Co. v. Nock, 2 Duvall, Ky. 562, a reccipt was given to the agent of the owner, but its contents were unknown to either until after the loss complained of. It was held that the limitations of liability therein were not binding. The court says: "Public policy imposes on common carriers a constructive liability peculiarly stringent, and as that policy might be often frustrated by permitting special contracts to qualify or relax the responsibility imposed and implied by law, there has been vexatious doubt whether any such modifying and exceptional agreement should be adjudged obligatory. Analogy, principle, and authority now, however, preponderate decidedly in favor of the legality of such contracts when fairly made without duress, imposture, or delusion, and fully understood and clearly proved. But no such special contract will ever be implied from a mere publication of notice that the carrier will exact conditions essentially various from those prescribed by law. Nor, in a case of importunate necessity for immediate transportation, and a refusal so to carry without a special contract, should the exaction of such a contract be sanctioned. Such unreasonable extortion might be deemed duress. As public carriers are bound to carry articles within their scope of business without any other contract than such as the law would imply, if owners will freely and understandingly make special contracts less favorable to themselves, they can have no cause to complain that the law will enforce them. But, before the law should do so, the proof must be clear that such contract was freely made and fully understood."

So in Mississippi it is held that limitations contained in receipts are not binding unless assented to by the shipper and that the mere acceptance of such receipt does not bind him. Southern Express Co. v. Moon, 39 Miss. 822; Mobile & Ohio R. Co. v. Weiner, 49 Miss. 725, 735.

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