Strohn v. Detroit & Milwaukee Railway Co.

Dixon, C. J. This case is ruled by that of Boorman v. American Express Company, [ante, p.152]. We there adopted the views of the court in King v. Woodbridge, 34 Vt., 565, and -held that the possession of the receipt by the plaintiff was, under the circumstances, but prima facie evidence of his assent to the terms of the special contract contained in the receipt, and that parol evidence was admissible to show that he never had in fact accepted the paper as a contract binding between himself and the company. Of course, possession of the paper by the party is evidence, more or less strong according to the particular circumstances, of his assent to the conditions contained [561] in it. In most cases it may be absolutely conclusive. If it should appear that be examined it, and knew the contents, and then kept it instead of returning it or offering to return it to the company, or notifying the company of bis dissent, suck acquiescence would no doubt be construed as conclusive evidence of bis assent. But where the paper is not' examined, and the contents not known, I do not think the same consequences follow. Nor do I think that the party is bound to examine the paper at once, and know the. contents, and to return it to the company or give immediate notice of his dissent, at the peril of being held concluded on the ground of acquiescence or neglect. Having previously entered into a special verbal agreement, he may rightfully assume, in the absence of notice to that effect, that it is embodied in the paper or receipt, or at least that the receipt contains nothing contrary to it. It is in the nature of a direct fraud or cheat for the company or its agents, after having entered into a verbal agreement, thus wrongfully to 'insert a contract of an entirely different character, and present it to the party without directing his attention expressly to it and procuring his assent. It is no answer for the company in such a case to say, that the other party should have been more diligent and watchful, and should have detected the frarid. So long as he is ignorant of the new conditions, and does not assent to them, the contract in writing is not consummated, and parol evidence may be received. The case made here, or proposed to be made by the evidence offered and rejected, is like that of King v. Woodbridge in almost every material fact and circumstance. In one particular it. is much stronger.. Here the receipts were not delivered to the plaintiffs until some days after the goods were delivered to the company and shipped from Milwaukee under the alleged verbal agreement. It was then too late for -the plaintiffs, had the conditions annexed to the receipts been made known to them, to have repudiated them and sent their goods by some other.route. [562] Nor do I see that the company could have gained anything) had the fraud been immediately discovered, and notice given. It might perhaps have expedited the transportation and delivery of the goods at New York, but that was a matter to be considered when the verbal agreement, if any, was made, and the goods received under it. I think the court below erred in excluding the evidence offered for the purpose of showing that agreement, and that the judgment should be reversed, and a new trial awarded. By the Court. — Ordered accordingly. Downer, J., dissents.