Boynton v. American Express Co.

Braley, J. The agreed statement of facts on which the presiding judge directed a verdict for the plaintiff is not within the St. of 1913, c. 716, § 5, permitting inferences of fact by this court, and the question presented by the report is, whether as matter of law on the evidence submitted the verdict should stand or judgment should be ordered for the defendant. Norton v. Brookline, 181 Mass. 360. Bullock v. Haverhill & Boston Dispatch Co. 187 Mass. 91. The defendant is engaged in an interstate express business, and received the plaintiff’s trunk at Portland, Maine, for transportation to West Springfield in this Commonwealth. The trunk and its contents having been lost in transit, no delivery has been made, and the plaintiff, having discontinued as to the second count of the declaration, relies upon the first count, which alleges that the defendant as a common carrier is liable in damages for breach of the contract. We assume, in the absence of any argument to the contrary, that the common law of the place of contract is the same as the law of the forum, and the measure of recovery, therefore, rests upon the terms of the contract of shipment. Callender, McAuslan & Troup Co. v. Flint, 187 Mass. 104. Hooker v. Boston & Maine Railroad, 209 Mass. 598. Boston & Maine Railroad v. Hooker, 233 U. S. 97. It is agreed that the plaintiff instructed one Annie Olson, in [240] whose possession and control the trunk had been left, “to deliver the trunk to the expressman when he called for it.” The defendant’s driver called, but at whose request does not affirmatively appear, when the trunk was delivered without the charges being prepaid, and the receipt described in the record was given and accepted. It contained a clause limiting the company’s liability to a fixed sum for non-delivery, if the true value was not declared at the date of shipment, and, no declaration appearing, the defendant upon the face of the contract is not responsible in excess of this amount. Bernard v. Adams Express Co. 205 Mass. 254, 258. Peirce v. American Express Co. 210 Mass. 383. Johnson v. New York, New Haven, & Hartford Railroad, 217 Mass. 203. The plaintiff however maintains that he is not bound by the limitation, because the driver when he took the trunk gnd gave the receipt, having asked for the value and being requested to make inquiry of the plaintiff at his office, should have complied, and his failure to inquire having prevented a declaration of value, the defendant received the trunk “as an insurer for full value.” But the driver had no authority to waive any portion of the contract, nor did he, in fact, assent to the request or direction of the plaintiff’s representative, or become her messenger. It is unnecessary under the circumstances to decide whether the plaintiff could recover, if the receipt is entirely displaced or ignored. If the plaintiff was ignorant of its terms until after the trunk had been lost, he did know of them when the action was brought. While no express reference thereto is found in the declaration, the only contract declared on is unmistakably shown by the agreed facts to be the contract within the four corners of the receipt. The parties plainly did not deal upon the assumption and understanding that the contract was to be partly oral and partly in writing, as in Davis v. Cress, 214 Mass. 379, 382. And the delivery of the trunk and receipt were concurrent. The failure to read it, where no fraud or concealment by the defendant appears, does not estop the company from reliance on all of its terms. Graves v. Adams Express Co. 176 Mass. 280, 282. It follows that the plaintiff is bound by the contract made in his behalf by his servant or agent. Edgar v. Joseph Breck & Sons Corp. 172 Mass. 581. Partridge v. White, 59 Maine, 564. And having accepted the receipt, which contained no valuation, he cannot [241] avail himself of the benefit of the contract and ignore the limitation inserted for the defendant’s protection. A tender of the amount due having been made before suit, and the money paid into court, judgment is to be entered for the defendant. R. L. c. 174, § 12. So ordered.