By the Court.
Benning, J.
delivering the opinion.
Iii speaking of the liability of a common carrier, Smith, in his “ Compendium of Mercantile Law,” uses this language : “ At common law he stands in the situation of an insurer of the property entrusted to him, and is answerable for every loss or damage happening to it while in his custody, no matter by what cause occasioned, unless it were by the act of [536]*536God, such as a tempest, or the King’s enemies. In, other cases, even his entire faultlessness does not excuse him. Thus, he is liable tor damage done by accidental fire, or by robbery.” 168.
The doctrine thus taught, may be admitted as true, at least, for all the purposes of the present case.
Can a common carrier, by contract, limit this liability ?
That he cannot do so, is, I think, an opinion that is modern ; and one that is wholly confined to this side of the Atlantic.
It is an opinion that, in all probability, had not been heard of in the time of Hale and Roll, or of Lord Mansfield, or even Sir James Mansfield.
In the case of Morse vs. Slue, a case that is the foundation of this doctrine of the unlimited liability of a common carrier, Lord Hale delivering the opinion of the Court, said: "That, tho’ by the admiral civil law, the master is not chargeable pro damno fatali, as pirates, storm, &c., but where there is any negligence in him he is, yet this case is not to be measured by the rules of the admiral law, because the ship was infra corpus comitatus. And the first reason of his being liable is, because he takes a reward, and the usage is to pay him half wages before he goes out of the country. 2dly: If he would, he might have had a caution for himself, which he omitting, and taking in the goods generally, he shall answer for what happens. 3dly: To excuse the master, a difference must be shown between him and a common horseman carrier, or inn-holder.” 15, Vin. Abr. in Marg. citing Vent., 236, 239.
Thus, it is seen, that one reason why, in the opinion of Lord Hale, the master was liable, was that he had failed to “ have a caution,” “ which, if he would, he might have had.”
So in Kenrig vs. Eggleston, 1. Vin. Abr. 221, citing Ale. 93, a case in which the carrier was robbed of money; “ Roll, Ch. J., directed that he must answer for the money; for A. [537]*537need not tell him all the particulars in the box, but it must come on the carrier’s part, to make a special acceptance.”
Á carrier .then might, in the opinion of the Chief Justice, as a matter of course, make a special acceptance.
In Gibbon vs. Paynton and another, a case happening in 1769, before the King’s Bench, when Lord Mansfield was Chief Justice therein, the facts are thus reported by Burrow : “ This was an action against the Birmingham stage-coachman, for 1001. in money, sent from Birmingham to London, by his coach, and lost. It was hid in hay, in an old nail-bag. The bag and the hay arrived safe, but the money was gone. The coach-man had inserted an advertisement in a Birmingham newspaper, with a nota bene, “that the coach-man would not be answerable for money or jewels, or other valuable goods, unless he had notice that it was money or jewels or valuable goods that was delivered to him to be carried. He had also distributed hand-bills of the same import. It. was notorious in that country, that the price of carrying money from Birmingham to London was three pence in the pound. The plaintiff was a dealer at Birmingham ;' and had frequently sent goods from thence. It was proved that he had been used for a year and a half, to read the newspaper in which this advertisement was published; though it could not be proved that he had ever actually read or seen the individual paper wherein it was inserted. A letter of the plaintiff’s was also produced, from whence it manifestly appeared that he knew the course of this trade, and that money was not carried from that place to London at the common and ordinary price of the carriage of other goods; and it likewise appeared from this letter, that he was-conscious that he could not recover by reason of this concealment. The jury found a verdict for the defendant.”
This verdict was sustained by the Court.
And in sustaining it, the Court, of necessity had to hold, that the carrier had the right to limit his liability; for in sustaining the verdict, it had to hold, that he might lawfully [538]*538make the advertisement which he made, and might lawfully rely upon the usage between the two cities, by which the price of the carriage of money was higher than the price of the carriage of ordinary goods.
Lord Mansfield, it seems, put his judgement chiefly on the ground, that the conduct of the bailor, was a fraud on the carrier. But how could that conduct be such fraud, unless the carrier had the right to fix the terms on which he would be answerable for the loss of articles ?
“ Mr. Justice Yates held, that a carrier may make a special acceptance'; and that this was a special acceptance.”
The other two Justices put their opinions upon grounds not unlike those on which Lord Mansfield put his.
In this case the carrier’s defence was, that he undertook to carry the money according to the terms of his advertisement, and not according to the terms imposed on him by the common law; and that, according to the terms of his advertisement, he was “ not to he answerable for money, unless he had notice that it was money ;” and that he had no notice that what was delivered to him to be carried was money.
The Court’s judgement excused the carrier; therefore, of necessity, the Court had to sanction this defence. 4 Burr., 2298.
In Harris vs. Parkwood, 3 Taunt. 264, a case decided in 1810, in the common pleas, when Sir James Mansfield was Chief Justice of that Court, a part of the head-note is: “ If a carrier gives notice that he will not be accountable for goods above the value of 20 l., unless entered, and insurance, paid over and above the price charged for carriage, according to their value, a person who enters silk exceeding the value of 20 l., and does not pay the insurance, cannot recover any part of value of the goods, if lost”
In the course of his opinion, the Chief Justice said: “ However we may wish the law to be, we cannot make it different than as we find it In looking into the books, we find the special acceptance much older than I had supposed it to be. [539]*539And it leads to great frauds, for on account of the number of persons always attending about these open wagon yards and offices, every person standing around is apprized that this or that parcel contains watches or jewelry to the amount of many hundred pounds; this is a great inconvenience, but however inconvenient it is, it seems that from the days of Alleyn down to this hour, the cases have again and again decided that the liability of a carrier may be so restrained.”
I might appeal to many other dicta and decisions of English Judges and Courts to sustain the proposition, that the opinion that a carrier could not, by special contract, limit his liability, was never in any age entertained in England. But these are enough. See however, Nicholson vs. Willan, 3 East. 507; Riley vs. Horne, 5, Bing. 218; Lowe vs. Booth, 13 Price, 329; Ang. on Car. § 54; Stor. Bail, § 548, et seq. Abbott on Ship. 215.
Nor do I know that this opinion has, after all, been ever entertained in this country. In New York, the Courts seem to admit that a carrier may, by special contract, limit his liability, but they appear to think that the special contract must not be of a particular kind, viz : must not be of the kind which may be inferred from a notice to the public, given by the carrier, and seen by the bailor, to the effect that the carrier will not be liable, except on certain conditions. Hollister vs. Nowlen, Ang. Car. App. 18; 19 Wend., 234. Cole vs. Goodwyn, Id. 33; 19 Wend. 251. See however, Gould and others vs. Hill. 2 Hill, 623.
[1.] In my opinion, a carrier may, by special contract, limit his liability. And this opinion, I feel sure, is adverse to nothing contained in the judgment in Fish vs. Chapman & Ross, 2 Kelly, 349.
I think, therefore, that the Court below committed no error in telling the jury that a carrier might limit his liability.
Say then, that a carrier may limit his liability by a special contract; may the contract, by which he would do this, [540]*540be an implied one ? or must it be, in every case, an express one?
In the aforesaid case of Gibbon vs. Paynton, 4 Burr., the contract was an implied one. So it was in the other cases, above mentioned viz: Harris vs. Parkwood, Nicholson vs. Willan, Riley vs. Horne, and Lowe vs. Booth.
In these cases the carrier gave public notice, that he would not be liable for lost goods, except on conditions ; and this notice was brought home to the bailor. Now, an agreement can be made out of such facts as these, only by implication.
There are a great number of English cases analogous to these. None of them, however, that I have noticed, is older than Gibbon vs. Paynton. I refer to but one, Wyld vs. Pickford, 8 Mees. and Wels., 442.
It is true, that in some of these cases, the Court say that, what is to be implied from the state of facts, viz: a public notice of terms by the carrier, knowledge of that notice brought home to the bailor, and disregard of the terms by the bailor, is a fraud in the bailor on the carrier. But in every case, their decision is that, this state of facts constitutes a good defence for the carrier; and, practically, it can make no difference, whether what is implied from the state of facts be called a fraud, or called a contract.
Section 551, in Story on Bailments, is as follows:
“ In respect to special contracts, they may be divided into two classes; first: such as are express; secondly: such as are implied. The latter class are the most frequent in cases of the carriage of goods, of goods on land. Special contracts sometimes arise from the particular dealing between the parties, either generally, as in the given case; sometimes from the general course of trade or business ; and sometimes, and most usually, from the public advertisements and notices, given by carriers, stating the limits of their responsibility.” And see § 557.
Indeed, if it be true, that carriers may, by contract, limit their liability, it would seem to follow, that it must be true [541]*541that they may do so by an implied, as well as by an express, contract When the law says that, a- person may make contracts, it thereby says- that he may make contracts in some mode. In what mode, then ? In that mode in which other persons make contracts. Other persons than carriers may make contracts by implication, as well as by expression: Therefore, so may carriers.
The conclusion, then, to be drawn from these premises, would seem to be, that a carrier may limit his liability, not only by express contract, but also by acts from which a contract will be implied: as a public notice, known to the party for whom he carries.
It appears, however, that the New York Courts, and such other Courts as follow their lead, have recently held that, although a carrier may limit his liability by such a notice, he can do so only to a certain extent; that, although he may rightfully say, for example, “ that he will not be responsible for goods above the value of a certain sum, unless they are entered as such, and paid for accordingly;” yet, he cannot rightfully say, that “ all baggage” will be at the “.risk of the owner.” 2 Green Ev. § 215, and cases cited.
I cannot find any authority for this distinction. It seems to me to be wholly arbitrary. The English Courts have, at this time, authority for the distinction — Acts of Parliament, Ang. on Car. §§ 255. 256, Abott on Ship. 260. But until those Acts of Parliament, the English Courts knew nothing of any such distinction. The New York Courts had no such Acts.
It is true that these Courts say that, “public policy” requires that some bounds should be put to these notices. But can public policy make a law ? and if it could, is it given to Courts to declare what is, or is not public policy ? Especially, is it given to Courts to declare that public policy allows these notices to go to a certain line, and not an inch beyond ?
[2.] I think, therefore, that a carrier may limit his liability, [542]*542not only by an express contract, but also by acts from which a contract is to be implied, such as public notice, known to the person for whom he carries, that he will not be answerable for the loss of goods committed to him, except on compliance with certain terms.
Any other acts or facts from which such a contract is to be implied, must stand on the same footing with this of notice. The things from which it is possible to imply a contract, may be indefinitely numerous. One of the most common of those things is usage. There is a usage by which the parties liable on bills of exchange and promissory notes payable otherwise than on demand, are entitled to days of grace. From this usage a contract is now implied, in every instance, that such parties shall have such days of grace.
Usage then, may be a thing from which a contract may be implied, And it may be a thing from which the contract by which a carrier limits his liability may be implied. In the case of Gibbon vs. Paynton, 4 Burr. 2,298, there was both a carrier’s notice, and a usage. It was shown that there was a usage, by which the price for which money was carried between Birmingham and London was not the common price of other goods, and the decision of the Court is put as much upon the usage as upon the notice.
And see Hyde vs. Trent & Mersey, Nav. Co. 5 T. R. 389; Garside vs. same, 4 T. R. 581; Ang. on Car. § 106, 179, 301, 355.
In the present case, there was evidence to show that, for some five years before the time when the cotton was shipped, there had existed a usage by which the master of steamboats plying on the Chattahoochee, gave bills of lading containing the exemption of losses by fire, and evidence to show that this usage was generally known in Columbus, and tending to show that it was known to Harper, who, as agent of the owners of the cotton, shipped the cotton.
Doubtless a usage cannot so establish itself in the course-of five years, as the usage of days of grace is established; [543]*543that is, so establish itself as to require the presumption, that all persons contract in reference to it; but still, it is possible that a usage may, in the course of as few as five years, so establish itself, as to be some evidence in favor of that presumption.
The usage then, shown in the present case, was not sufficiently established to require the presumption that the parties contracted in reference to it.
Besides there were other facts in the case which, as the owners of the cotton insist, weakened, if they did not neutralize, the whole effect of this fact of usage.
The owners of the cotton say, among other things, that the contract between the parties was in writing, and that it was couched in such terms as to show that the carriers were not to be exempt from liability for losses by fire. Of which more presently.
[3.] The most to be said in favor of this usage as a fact from which a contract was to be implied, by which the carriers exempted themselves from liability to answer for losses by fire, is, that it was a fact furnishing some evidence to authorize the implication; how much, was a question for the jury; a question to be determined by a comparison of the facts of usage, with all the other facts in the case.
All of which considered, I think that the following part of the charge of the Court would have been so near’ right that it could not have misled, if the word “may” had been in the place of the word “will,” viz: “ If the proof Shows that it was the custom of the boat owners on the Chattahoochee river to give bills of lading exempting them from the damages of fire; that this custom was certain, well established and known to Col. Harper, and that he directed Crichton to make qut a bill of lading and deliver the same to Harper & Holmes, upon the arrival of the boat, and that such a bill of lading was made out, then you will” [may] “infer-an agreement of exemption from the damages of fire.”
True, there might, with propriety, have been some expía[544]*544nation, as to what it is that makes a usage, “certain,” “well established,” and also an addition, that if the other facts in the case, including the receipt and the order, were such as to satisfy the jury that the parties did not contract in reference to the usage, then, that the carriers were liable notwithstanding the usage.
However, the owners of the cotton say, that the contract between them and the carriers was in writing, and therefore, that neither the evidence about usage, nor any of the other parol evidence as to what was the contract, was admissible.
Are they right in this? The only writings in the case were the writings 'signed by Col. Harper, and that signed by Chas. Crichton, the clerk of the boat These were as follows:
“Columbus, Dec. 28th, 1853.
Cap’t Berry will please call at Mrs. Boykin’s landing and take 100 bales, with or without mark, and deliver to Harper & Holmes, Apa., by whom the freight will be paid,
And oblige,
W. H. HARPER.”
“Steamer Franklin received at Mrs. Boykin’s landing 134 bales cotton ; order from W. H. Harper, Columbus, says 100 bales, but we concluded as you had 134 bales on the bank, that you wanted it all to go. The above is consigned to Messrs. Harper & Holmes, Apa.
Steamer Franklin, December 26th, 1853,
CHAS. CRICHTON, Clerk.”
Was it the necessary import of these writings, that the boat was to carry the cotton without exemption from the carrier’s liability for losses by fire ? If it was, parol evidence to show that the boat was to carry the cotton exempt from that liability for such losses, would not be admissible, for, in that case, to vary or contradict the writings, could be its only effect. If it was not, such parol evidence would be admissible; for to vary, [545]*545in that case, or contradict the writings, might not be its effect. The evidence might consist with them.
Now, it was not the necessary import of the writings, that the boat was to carry the cotton exempt from the carrier’s liability for losses by fire; for it was not their necessary import that the boat was to carry the cotton at all. Nothing is said in them, expressly of by necessary implication, about carrying the cotton from one point to another, and therefore nothing about the terms of carrying it.
Such parol evidence, therefore was admissible.
Still, as an undertaking on the’part of the boat to carry the cotton subject to the carrier’s liability for losses by fire, was the rational import of the writings; a jury would be authorized and required to look with suspicion on parol evidence going to show that such was not their import, but that their import was the opposite; would be justified in yielding to such evidence, only when it was of the most satisfactoiy nature. See Green. Ev. §§ 286, 288, 277, 296.
But even if these writings had been the precise equivalent of an ordinary bill of lading, it is far from clear that parol evidence would not have been, admissible to vary them. See forward
Bates vs. Todd, 1 Moo. and R. 106. Berkley vs. Watting 7 Adol. Ellis. 29. Howard vs. Tucker 1 B. and Ad. Ang. on Car. § 231.
I think, therefore, that it was the right of the parties on the one side, to introduce parol or other evidence to show that these writings, whether taken jointly or separately, did not contain an undertaking to carry and deliver, did not amount to a contract of carriage; and the right of the parties on the other side, to introduce parol or other evidence to show that the writings did;
Was the parol evidence that was admitted, such as was admissible for this purpose?
I think it was. It was all pertinent.
[546]*546In order to determine whether the parties intended that the contract of carriage was to be what was contained in these writings one or both, or was to be something into which an exception of losses by fire, would enter, it was necessary to know the mind of each party. It was therefore necessary to know the mind of the carriers, or of their agent, the master.
For the purpose of showing this, if for nothing else, the evidence of Crichton, objected to, was admissible. It is true that what was the mind of the carrier would be of no effect, unless knowledge of it, some how, got to the owners of the cotton. The burden was on them to show that what their understanding of what the contract was, did get to the owners of the cotton.
I think, therefore, that the Court below was right in admitting Crichton’s evidence that was objected to, and all the evidence in relation to usage.
But I think, too, that the Court went too far in charging the jury as follows: “ That if the proof showed that Harper, gave the instructions to Crichton to leave the memorandum to show the number of bales taken, that then that paper is a mere memorandum, and is not a bill of lading— contains no contract, and is no evidence of a contract, and proves nothing.”
To have told the jury that if Harper did this, it might authorize them to presume that the parties did not intend the “paper” to containjthe contract, would, I think have been going far enough. And even this, if it had been given to the jury, ought to have been accompanied with the caution to look to all the evidence, and see whether there was anything in it to prevent the presumption from arising, or to rebut it if it had arisen.
The last point which the owners of the cotton make, is this: they say, that, admitting that the contract was that the carriers were not' to be liable for losses by fire, and that such a contract is valid, — yet, that the carriers did not receive the cotton under the contract. The argument by which they [547]*547come to this conclusion may be thus stated: The contract, if made, was that the carriers were to take one hundred bales of cotton or less, and were not to take more than one hundred bales; the carriers took more than one hundred bales, therefore they violated the contract; but if they violated the contract, they could derive no right from the contract, and therefore, they could derive no right to carry the cotton, or any part of it, from the contract.”
This I think, is a good argument, if it states the contract correctly. If the contract was, that the carriers were to take one hundred bales or less, and were not to take more than one hundred bales, then it is plain to me, that the legal effect of the contract was, that if the carriers took more than one hundred, they thereby forfeit their right to take one hundred or any less number. If this was the contract, it was, I think, the same in effect, as it would have been, if it had been in this form: “The carriers are to take one hundred bales or less, but if they take more, they do so on pain of losing their right to take any of the bales.”
The Court below should, therefore, as I think, have told the jury that if the contract was, that the carriers were to take one hundred bales of cotton or less, and were • not to take more than one hundred; then if the carriers took more than one hundred, they violated the contract, and therefore derived no right under the contract to carry any part of the cotton, and consequently that they could not set up the contract as a defence to the suit
But the carriers meet this argument, with a counter argument, one which may be thus stated: “ The contract was, that the carriers were to take one hundred bales of cotton or less, in any event, and therefore, if they took more, the taking of the excess was no forfeiture of their right to take one hundred or less, but was an independent matter.”
This argument is, I think, a good answer to the other, if it be true, that the contract was as it states it to have been; end so I think the Court should have told the jury.
[548]*548The question whether the contract was, as claimed by the one side, or as claimed by the other, was a question for the jury.
Supposing that the jury had been charged on this point, so as to meet these views, and that they had found that the contract was as it was claimed to be by the plaintiff, would the jury have been authorized, (the form of the action considered,) to return a verdict for the plaintiff, for the value of the cotton ?
I think they would. It is true that, in the case supposed, the carriers would not be acting under any contract with the owners of the cotton, and therefore the liability of the carriers would not be a liability to be reached by an action in form ex contractu, (the form of this action,) but would be a liability to be reached by action in form ex delicto; yet as the difference between that which would be the proper action, ex delicto, for the case, and the present action, must be a difference of mere form, the present action may, I think, be converted into that, at any time, under the amendment Act of 1854.
The Judiciary Act of 1799, looks entirely to substance in pleading and not at all to form.
The common law itself permits parties, in a considerable number of cases, to waive a trespass, and sue in implied assumpsit.
Why might not the shippers, in the case supposed, waive the last, and sue in assumpsit on the common law liability of the carrier ?
It follows, of course, that I think that the form of the action was no obstacle to a recovery being had by the plaintiff in respect to all of the bales of cotton over one hundred.
Judgment reversed.
Lumpkin, J. concurred.