Dale v. See

The opinion of the court was delivered by Depue, J. The appeal given to the Court of Common Pleas from the District Court is upon matter of law, either in the judgment given by the latter court, or its ruling upon the-admission or rejection of evidence. No appeal lies upon matters of fact, and the appellate court has no power to retry the ease upon the merits. Guerin v. Rodwell, 8 Vroom 71, 75; Benedict v. Howell, 10 Id. 221; Baldwin v. Golden Star Fraternity, 18 Id. 111; Haines v. Roebuck, Id. 227. If the Common Pleas found that the judge of the District Court erred in excluding the evidence offered, there should have been simply a reversal of the judgment, remitting the record for a new trial. The final judgment given by the Pleas in favor of the defendants was erroneous. Whether this court, in reversing the judgment of the Pleas, shall remit the record to that court, to the end that the proper judgment may be entered there, or shall reverse the judgment of the Pleas and affirm the judgment of the District Court, depends upon whether the ruling of the judge of the District Court, in excluding the evidence offered by the defendants, was or was not erroneous. The defendants received the plaintiff’s goods upon a bailment locatio ojperis faciendi, to do work .upon them for a reward. Incident to such a bailment, and from the act of employment, the law implies an undertaking that the work shall be done with due care and competent skill. The duty of the bailee in the premises is a non-contract obligation imposed by law, and the parties may, by express contract, enlarge, abridge, qualify or supersede the obligations which otherwise would arise from the bailment by implication of law. The defendants claim that they were not liable for the damages occasioned by unskillful workmanship unless a claim for such damages was made within three days after the rede [382] livery of the goods to the plaintiff, or rather, within three days .after the delivery of the bill for the work done. Stipulations or conditions that a carrier or telegraph company shall not be liable for damages unless claim be made within a limited time after the goods or message were delivered for transmission, have been held to be valid when reasonable, and binding when brought home to the shipper of ;the goods or the sender of the message. Lewis v. Great Western R. R. Co., 5 Hurlst. & N. 867; Express Co. v. Caldwell, 21 Wall. 264; Wolf v. Western Union Telegraph Co., 62 Penna. St. 83; Young v. Western Union Telegraph Co., 65 N. Y. 163; Ellis v. American Telegraph Co., 13 Allen 306. But, in all the cases in which stipulations or conditions of this character have been held to be contracts, they were contained in or made part of the original contract of bailment. Notices of -such conditions, printed at the head of shipping receipts or in •the headings of the paper on which the telegram is written, have been held to amount to contracts. But a notice given •after the goods or message are delivered and received cannot have any such effect. The contract implied by law arises immediately when the bailment is accejked, and notice subsequently given would be inefficacious to establish a contract for the want of mutual assent and sufficient consideration. Thus, if goods be delivered to and accepted by a carrier without an ■express contract, he cannot discharge himself from the liability implied by law by subsequently transmitting to the shipper a •contract of affreightment qualifying his liability. Gott v. Dinsmore, 111 Mass. 45; Bostwick v. Baltimore and Ohio R. R. Co., 45 N. Y. 712; Guillame v. General Transportation Co., 100 Id. 491. /Upon a bailment of goods for work and labor upon fheiiq the contract between the parties arises immediately upon the delivery of the goods to the bailee, and upon the completion of the work for which the bailment was made, it is the duty of the bailee to return the goods to the owner. He cannot prescribe the conditions under which he will perform that duty. Notice by the bailee, with the return of the goods, or with his bill for the work done, qualifying his liability for383 ■defective workmanship, are terms of his own dictation. His refusal to restore the goods to the owner except upon those terms would be wrongful. And although the owner should .accept his goods with knowledge of the terms proposed, no ■contract would arise therefrom. The transaction would lack ■.the consideration necessary to support a contract. The ruling of the judge of the District Court excepted to was not in excluding evidence which might be competent, as -tending to show that in fact the silk in question was delivered to them under a special contract. The facts set out in ■the defendants’ offer were submitted to the court as in themselves a defence to the action, and the ruling excepted to was the disallowance of the defendants’ claim that these facts made ■out a complete defence. Those facts, so far as they are pertinent to this inquiry, are as follows: That the defendants had frequently dyed silk for the plaintiff prior to this trans.action ; that they had always delivered bills for their work, in such cases, with the notice printed thereon, of which notice the plaintiff had knowledge before the silk in question was ■delivered; that for some of the work in question such bills had been delivered, and that no claim for damages had been made within the time designated in the notice. There was no ■ offer to show that the plaintiff had ever yielded to, complied with, adopted, assented to, or in auywise recognized the terms contained in the notice as the arrangement between him and ■the defendants for the transaction of business between them. The defendants’ contention was, that the facts mentioned in the offer of themselves constituted a defence, as ipso faeto establishing a special contract. This contention it was that the judge overruled. The evidence offered was insufficient to establish a general usage of the trade. All that was proposed on that subject was to show that such notices have been uniformly printed on . all the bills rendered by the defendants to their customers, from prior to this transaction to the present time. Nor was ' it proposed to be shown that the plaintiff had knowledge of The defendants’ course of business in that respect. Whatever [384] foundation the defence could derive from the evidence excl uded rested on the isolated transactions between these parties —the notices on the bills delivered to the plaintiff, and his-knowledge that they appeared on those bills. From what has already been said it is apparent that no one-of these notices of itself constituted a contract with respect to the work to which the bill on which it was printed was applicable. When the first bill was sent to the plaintiff the-notice on it was a nullity. So with the second, and so with each of the bills in the series. As these bills came in from, time to time, while the plaintiff knew the notice was upon them, it must be assumed that he also knew that the notice-was, in law, a nullity, and, in legal effect, only an announcement by the defendants in terrorem of their intention to resist claims for damages not made within three days, and the plaintiff was justified in so regarding it. Each of these notices-being in itself a nullity, it is inconceivable how, upon any-legal principle, the frequency with which they were repeated could create out of them a contract on the part of the plaintiff without a scintilla of evidence of assent to the terms expressed in them. Notices of similar import, such as all claims for shortage or breakage must be made in so many days, are-not uncommon in invoices of goods sold and in bills given by carriers on the delivery of goods to the consignee, and I am not aware that such notices have, by any judicial decision,, been recognized as having any validity wdratever, unless supplemented by some evidence that the original purchase or-shipment was made upon such terms. The facts embraced in the defendants’ offer, standing alone,, would be wholly insufficient to establish a special contract between the parties. The District Court act allows exception to be taken to the ruling of the judge in excluding evidence or-in overruling a defence. No rule of practice and procedure-is better settled, than that, in taking exception to the decision of the court in overruling the offer of evidence or excluding a defence, the exception must state the grounds upon which the offer was made. Litigants who have excepted to the385 court’s refusal to rule that a certain state of facts, if proved, would amount to a complete defence in law, cannot insist, in a court of review, that the facts offered to he proved would have been competent evidence upon an issue of fact not distinctly-presented. Grand Trunk Railway Co. v. Jennings, 8 App. Cas. 800, is a precedent quite apposite, and the remarks of Lord Watson, on page 803, have direct application. The principle is supported by numerous decisions in this state. The facts excluded having been offered as in themselves a defence, the ruling of the judge of the District Court, that they were insufficient for that purpose, was correct. The defendants’ counsel, in his brief, called in question the measure of damages adopted by the judge of the District Court. The rule adopted appears to have been the difference between the market value of the braids in the oily condition of the silk and the market value they would otherwise have had. Consequential damages of this kind may be recovered for breaches of contract of this character, and there is nothing in the case certified to show that, as applied to this case, the measure of damages was improper. The evidence offered and excluded, with respect to the plaintiff’s ability to discover the oily condition of the silk before it was made into braids, was-not offered for any bearing it might have on the damages recoverable. It was part of the case offered as a complete defence. If that circumstance could have any effect in controlling the measure of damages, the attention of the judge was not called to it, and there was no exception on that point. The judgment of the Common Pleas should be reversed, and the judgment of the District Court be affirmed.