Western Transit Co. v. Hosking , 19 Ill. App. 607 ( 1886 )

Morah, J.

The main contention in this case arises over the question whether the owners of the fish are bound by the conditions on the back of the bill of lading which was taken by the forwarder, Bing, at Boston. On the trial plaintiffs offered the receipt contained in the bill of lading, to show that appellants received the fish in good condition. It was competent for that purpose and was prima facie proof of that fact, though, if the contrary was the truth, appellants were at liberty to show it by any competent evidence. G. W. R. R. Co. v. McDonald, 18 Ill. 172; I. C. R. R. v. Cobb, 72 Ill. 154.

But appellant’s counsel objected to the receipt unless the whole bill of lading was offered, insisting that the receipt and the conditions on the back constituted one entire contract, and that the bill of lading, containing the printed conditions on the back, was received by Bing, the agent of plaintiffs to forward the fish, without dissent or objection, and the conditions exempting the appellant from liability from heating, and unless the damage to the' property should he/,-affirmatively proven to have been caused by the. negligence of appellant, was binding. Under the law as settled in this State a common carrier can limit his ordinary liability only by a special contract, and the acceptance of a receipt or bill of lading, with printed conditions or notice limiting the carrier’s liability, by the owner or shipper of goods, without dissent, will not establish such a contract. It must be shown that the shipper knew of and assented to the exemption, and such assent must be shown by other and additional evidence, and is not the sxxbject of presumption from the terms of the receipt alone. Western Transportation Co. v. Newhall et al., 24 Ill. 466; Adams Express Co. v. Haynes, 42 Ill. 90. Applying this rule to the facts in evidence in this case, and the conditions on the hack of the. bill of lading, those conditions did not become any part of the contract, and the court was bound under the axxthorities to admit the receipt as offered. Western Transportation Co. v. Newhall et al. supra; M. D. Transit Co. v. Thielbar, 86 Ill. 71.

It is undoxxbtedly true, as contended by appellant’s counsel, that ¡Ring, the forwarder, woxxld he presumed to have authority to make the contract for his principal, which it is claimed that he did make in this case. One who is the agent of the owner to ship or forward goods, is presxxmed to have authority to accept a receipt from the carrier containing conditions as to liability, in order to procure them to be forwarded. Nelson v. The Railroad, 48 N. Y. 498; Squire v. Railroad, 98 Mass. 239; York Co. v. Central Railroad, 3 Wall. 107.

And it may be true that the acceptance of the bill of lading, without dissent by-Ring, woxxld, xxnder the rule as. established in ¡Massachusetts, authorize the inference of assent to all the tei’ms and conditions contained in it, and amount to evidence of the contract between the parties. Grace v. Adams, 100 Mass. 505.

But appellant offered no proof, on the tidal of this case, that the acceptance of the bill of lading, without dissent, .woxxld constitute a contract under the law of Massachusetts. The court was bound to apply the law of Illinois to the facts in evidence, unless proof was made that there was a law entering into the contract where it was made, and with referenee to which the parties would be held to have dealt, which gave a different import, significance or construction to their acts.

If, in the State where the contract is made, there exists as a principle of its' common law, established by the decisions of its courts, a legal presumption arising upon certain acts of parties to a contract, which enters as a rule of evidence into their agreement, compelling or implying, from what they do and say, a certain inference or intention, such rule or principle of law will not be applied to the contract in the courts of another State where no such presumption exists, unless, upon the trial, proof of the lex locieontraoius is made as a fact to be regarded by the court and the jury in ascertaining the contract between the parties. A judge is bound to know the statutes and the common law of his own State, but not of another State: and the court will presume that the common law, as established in his own State, is the common law of the State where the contract is made, unless the contrary is proven as a fact. 1 Wharton on Ev., 300; 2 Phillips on Ev., 427, and cases cited in note.

This rule is illustrated in Hoadley v. The Northern Transportation Company, 115 Mass. 304. There the question arose in a suit brought on a bill of lading made in Illinois, and, to avoid the Massachusetts rule, the plaintiff made proof to the jury of the Illinois law by introducing in evidence the Illinois reports containing the cases which establish it.

The court below then committed no error in refusing to instruct the jury that accepting the bill of lading without dis. sent would constitute its conditions and limitations a binding contract between the parties. Tried by the law of this State, there was no error in admitting or rejecting testimony or in the instructions given, and as the evidence clearly supports the finding of the jury the judgment was correct and must be affirmed.

Judgment affirmed.