Perry v. Thompson

98 Mass. 249

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1867
• Status: Published

Opinion

Bigelow, C. J.

The evidence was wholly insufficient to warrant a finding that the plaintiffs had assented to any limitations of the general liability of the defendants as common carriers. The settled rule of law in this Commonwealth is, that a notice by a carrier that he does not assume the responsibility which the law attaches to his calling, though brought home to the knowledge of the owner or consignor of goods delivered for transportation, does not operate to relieve the carrier from liability for their loss occasioned by causes other than the act of God or the public enemy. To have that effect it must also be shown by satisfactory evidence that the notice was assented to by the owner or consignor, and that he delivered his property to the carrier intending to acquiesce in the limitation of liability which the notice contained. Judson v. Western Railroad Co. 6 Allen, 486, and cases cited. We do not mean to be understood as saying that such assent and acquiescence may not be shown by evidence drawn from a long and uniform course of dealing between parties, in connection with other circumstances leading to the inference that a notice of a restricted liability on the part of the carrier was recognized by the other party as constituting the agreement on which the contract of carriage was to be performed. But such dealing and recognition must be tantamount to a clear assent to the terms of the notice on the part of the owner or consignor, or it will fall short of establishing a limitation on the common law liability of the carrier.

In the case at bar it is expressly found that neither the plaintiffs nor their agents or servants had any actual knowledge of the contents of the notice. Certainly the jury could not find that the plaintiffs had given their assent to that of which they had no knowledge. Besides, the course of dealing between the parties had not been uniform. Property had been received and carried by the defendants for the plaintiffs without any notice relating to the liability of the former having been given. Nor is this all. The goods for the value of which the present action is brought were delivered into the custody of the defendants before the alleged notice was received by the plaintiffs, and when it was subsequently sent to them a portion of the notice was so covered up by the revenue stamp affixed to the receipt that it could not be read intelligibly. Under such circumstances, the jury could not have properly found any assent by the plaintiffs to these terms of the notice contained in the receipt.

Exceptions overruled.