Michigan Central Railroad v. Boyd

91 Ill. 268

• Court: Illinois Supreme Court
• Decided: September 15, 1878
• Status: Published

Opinion

Mr. Justice Scholfield

delivered the opinion of the Court:

The contract for the carriage of the goods having been made in Massachusetts, the laAV of that State must control as to its nature, interpretation and effect. Pennsylvania Co. v. Fairchild, 69 Ill. 261; Milwaukee and St. Paul Railroad Co. v. Smith, 74 id. 197.

The laAV of Massachusetts is, by the stipulation, to be accepted as stated in the opinions of the Supreme Court of that State in Grace v. Adams, 100 Mass. 505, and Hoadly v. Northern Trans. Co. 115 id. 304. It is: “A bill of lading, or shipping receipt, taken by a consignor Avithout dissent, at the time of the delivery of the property for transportation, by the terms of which the carrier stipulates against such liability, (i. e., the liability of a carrier, in the absence of a special contract, under the common laAV,) would exempt the carrier Avhen the loss was not caused by his own negligence, on the ground that such acceptance would authorize him to infer assent/ and amount to evidence of the contract between the parties.”

It will be observed this requires that the bill of lading or shipping receipt shall be taken by the consignor without dissent at the time of the delivery of the property for transportation. But the bill of lading here relied on, as showing an exemp-; tion, was not accepted by the consignor at the time of the de-: livery of the property for transportation. The stipulation is,' that within a few days after the goods were delivered for transportation, “ and after said goods were on their way,” upon the presentation of the dray receipt for the goods, and at the request of the consignors, the bill of lading was delivered. This we can not regard as the equivalent of a delivery of a bill of lading at the time of the delivery of the property for transportation. It does not appear, when this bill of lading was delivered, the consignors had any authority to bind the consignees by any contract in regard to the goods. The goods had then passed entirely beyond their control; and, inasmuch as it is the act of accepting the bill of lading without dissent which creates the presumption of assent to its terms, it follows that the consignor must, at the time, have been acting as the agent of the consignee, to bind him. An agent, after the termination of his agency, can do no act which can relate back to and become evidence of a contract made by him whilst he was agent.

We are furnished with no authority that, under the law of Massachusetts, the evidence of prior shipments and the acceptance of like bills of lading by the same consignors, qualified as it is by the fact that their attention was never called to the •exemptions and restrictions in the bill of lading, is sufficient to raise the presumption that the parties intended these goods were to be carried subject to the exemptions and restrictions of this bill of lading, and, in our opinion, such presumption should not follow.

The judgment is affirmed.

Judgment affirmed.