Wetzell v. Dinsmore , 4 Daly 193 ( 1871 )

By the Court.^*—Bobinsoh, J.

—The contract of defendants (partly printed and partly written) as alleged in the answer, was produced on the trial by the plaintiffs and relied upon as the evidence of the defendants’ obligation. Eo question, therefore, can arise upon any other responsibility than what it imports, predicated upon the general liability of a. common carrier and his common law obligation, without further proof that the receipt or contract, made or delivered on his-part, was without notice to or assent by the owner to the special and limited obligations contained in covert conditions printed thereon and attempted to be affixed to the common law obligations of the carrier, without assent of the owner (Lamb v. Camden, &c. R. R. Co. 2 Daly, 181). The case is then dependent upon the construction to be given to the receipt given by defendants-for “ one package (3 cases drgs.),” as to which it was agreed that in no event should the holder of the receipt “ demand beyond. the sum of fifty dollars, at which the article forwarded is hereby valued, unless herein expressed.”

In Earle v. Cadmus (2 Daly, 237) it was decided in this, court, at general term, that the terms, “ any article,” in such a receipt referred to any separate article. In- the present case,, each case contained in the package of three cases, was of the-actual value of $113 50, two of which through the defendants’ default were lost, and judgment has been given therefor at a-valuation of $50 each.

Were the case at general term of this court, above cited, not authoritative, the present case would require a like construction. The parties contracted with reference to a “ package,” which, as they yet expressed, consisted of three-cases. They thus made reference to the particular subjects of their'contract ( Woodruff v. Commercial M. Ins. Co. 2 Hilt. 122), and had in contemplation the necessity of defining with particularity their meaning of the word “ article,” as constituting a designated part or member of the whole package. The effect of thus specifying the contents of the package, evidenced that their minds contemplated something beyond its general description, and for the purposes of the contract extended its operation to the particularly designated articles as “ three cases,” intended as distinguished from the term “ package.”

The reasons assigned by Chief Justice Daly for this decision should be accepted as satisfactory grounds for sustaining it-

The judgment should be accordingly affirmed, with costs.

Judgment affirmed.

* Present, Robinson, Larp.emore and J. F. Daly, JJ.