This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
New Hampshire. Durgin v. Express Co., 66 N. H. 277, 20 Atl. 328, 9 L. R. A. 453; Merrill v. Express Co., 62 N. H. 514.
New York. Hill v. Ry., 73 N. Y. 361, 29 Am. Rep. 163.
North Carolina. Phifer v. R. R., 89 N. Car. 311, 45 Am. Rep. 687.
South Carolina. Johnstone v. Ry., 39 S. Car. 55, 17 S. E. 512.
Vermont. Davis v. Ry., 66 Vt. 290, 44 Am. St. Rep. 852, 29 Atl. 313.
20 Jones v. Ry., 89 Ala. 376, 8 So. 61.
21 Chicago, Rock Island & Pacific Ry. Co. v. Craig, - Okla. - , 157 Ac. 87.
22 England. Richardson v. Brown-tree, L. R. (1894) App. Cas. 217.
United States. The Majestic, 166 U. S. 375, 41 L. ed. 1039; Potter v. The Majestic, 60 Fed. 624, 9 C. C. A. 161, 23 L. R. A. 746; The Majestic, 56 Fed. 244; Wiegand v. Ry. Co., 75 Fed. 370 [limitation on liability for baggage].
Georgia. Boyd v. Spencer, 103 Ga. 828, 68 Am. St. Rep. 146, 30 S. E. 841 [limitation as to time; citing Quimby v. Vanderbilt, 17 N. Y. 306, 72 Am. Dec. 469; Pennsylvania Ry. Co. v. Spicker, 105 Pa. St. 142; and distinguishing Phillips v. Georgia, etc., Co., 93 Ga. 356, 20 S. E. 247].
Kansas. Kansas, etc., Ry. Co. v. Rodabaugh, 38 Kan. 45, 5 Am. St. Rep. 715, 15 Ac. 899.
New Jersey. Runyan v. Ry. Co., 61 N. J. L. 537, 68 Am. St. Rep. 711, 43 L. R. A. 284, 41 Atl. 367.
New York. Cole v. Goodwin, 19 Wend. 251, 32 Am. Dec. 470; Rawson v. Ry. Co., 48 N. Y. 212, 8 Am. Rep. 545.
ticket.23 So while a shipper has as a rule an opportunity for examining the bill of lading furnished to him, he is not bound by the terms thereof where no such opportunity is given and no notice is given thereof.24 What amounts to reasonable notice of terms in tickets and bills of lading is in part a question of fact. The following are cases in which the purchaser was held not to have a reasonable notice of the terms contained in the ticket: Where on the face of the ticket were the words "See back" in conspicuous type, but no reference was made to the conditions on the back as part of the contract nor was the attention of the passenger called to them;25 where a ticket was folded up when delivered to the purchaser, and, while he knows that there is writing thereon, he does not know that such writing is a contract;26 where a ticket was sold whose time-limit had expired but the purchaser was unable to read the terms because of the poor light in the depot;27 or where a receipt for a trunk contained special terms which could not be read in the dimly lighted car where it was delivered.28 Where the terms are in part expressed by punch marks and the like so unintelligible as not to be easily understood by a person of ordinary intelligence, the purchaser will not be bound thereby, even if a notice on the face of the ticket recites that a "passenger in accepting this transfer agrees to read and be governed by the conditions on the back thereof"; and on the back appears a condition that the passenger shall examine date, time, and directions of a transfer check, which are so complicated in the form used that they can not be easily understood by persons of ordinary intelligence.29 So where the clause in question is on the back of the bill of lading and is not brought to the attention of the shipper;30 or where the clause in question is stamped in red ink on one corner of the shipping receipt;31 or is in type too small to be read;32 or is covered by a revenue stamp so as to be illegible,33 he is not bound thereby. If the shipper actually had shipping receipts in his possession and made them out himself, he is charged with knowledge of the provisions which are contained therein, even if he has not actually read them.34 A reference on the face of a receipt which states that the conditions are to be found on the back, is sufficient.35 (4) If a passenger makes an oral contract with the railway company, he may assume in the absence of special notice, that the ticket given to him shows the terms of the contract correctly.36 So where an oral agreement for transportation is made, the shipper may assume that a bill of lading subsequently delivered to him sets forth the terms of the oral agreement correctly; and he is not bound by the insertion of different terms therein.37 So a verbal agreement for transportation can not be varied by the terms of a receipt delivered
Ohio. Kent v. R. R., 45 0. S. 284, 4 Am. St. Rep.-539, 12 N. E. 708; Mack v. Western Dispatch, 2 Ohio C. D. 22; Lake Shore, etc., Ry. Co. v. Mortal, 8 Ohio C. D. 134 (duty to have return coupon stamped).
Pennsylvania. Arnold v. R. R., 115 Pa. St. 135, 2 Am. St. Rep. 542, 8 Atl. 213.
Tennessee. Louisville, etc., Co. v. Turner, 100 Tenn. 213, 43 L. R. A. 140, 47 S. W. 223 (time limit).
23 Pennsylvania R. R. v. Spicker, 105 Pa. St. 142.
24 Chicago, etc., Ry. Co. v. Simon, 160 111. 648, 43 N. E. 506.
25 The Majestic, 166 U. S. 375, 41 L. ed. 1039.
26 Richardson v. Browntree, L. R. (1894); App. Cas. 217.
27 Calloway v. Mellett, 15 Ind. App. 366, 57 Am. St. Rep. 238, 44 N. E. 198.
28 Madan v. Sherard, 73 N. Y. 329, 29 Am. Rep. 153; and see Blossom v. Dodd, 43 N. Y. 264, 3 Am. Rep. 701.
29 O'Rourke v. Ry. Co., 103 Tenn. 124, 76 Am. St. Rep. 639, 46 L. R. A. 614, 52 S. W. 872.
30 Railroad Co. v. Mfg. Co., 83 U. S. (16 Wall.) 318, 21 L. ed. 297; Merchant's, etc., Co. v. Furthman, 149 111. 66, 41 Am. St. Rep. 265, 36 N. E. 624; Newell v. Smith, 49 Vt. 255.
31 New York, etc., Co. v. Sayles, 87 Fed. 444.
32 The Minnetonka, 132 Fed. 52 [affirmed, The Minnetonka, 140 Fed. 500]; Ryan v. Ry., 65 Tex. 13, 57 Am. Rep. 589.
In the absence of evidence tending to show that such terms were not read, it will be presumed that they were read. The Toronto, 168 Fed. 386.
33 Perry v. Thompson, 98 Mass. 249.
34 Perrin v. United States Express Co., 78 N. J. L. 515, 28 L. R. A. (N.S.) 645, 74 Atl. 462; Greenwald v. Barrett, 199 N. Y. 170, 35 L. R. A. (N.S.) 971, 92 N. E. 218.
35 Singer v. Merchants' Despatch Transportation Co., 191 Mass. 449, 114 Am. St. Rep. 635, 77 N. E. 882; Strong v. Wells, 39 S. D. 389, 164 N. W. 967.
36 Indiana. Indianapolis, etc., Co. v. Cox, 29 Ind. 360, 95 Am. Dec. 640.
Massachusetts. Malone v. Ry., 78 Mass. (12 Gray) 388, 74 Am. Dec. 598.
Texas. Gulf, etc., Ry. v. Copeland, 17 Tex. Civ. App. 55, 42 S. W. 239.
North Carolina. Creech v. Atlantic Coast Line Railroad Co., 174 N. Car. 61, L. R. A. 1918D, 1030, 93 S. E. 453.
Ohio. Ann Arbor Ry. v. Amos, 85 O. S. 300, 97 N. E. 978.
37 Canada. North-West, etc., Co., v. McKenzie, 25 Can. S. C. 38.
Illinois. Merchants,' etc., Co. v. Furthmann, 149 111. 66, 41 Am. St. Rep. 265, 36 N. E. 624 [affirming 47 111. App. 561].
Iowa. Stoner v. Ry., 109 la. 551, 80 N. W. 569.
Kansas. Missouri Pacific Ry. v. Beeson, 30 Kan. 298, 2 Ac. 496.
Kentucky. Louisville, etc., Ry. v. Cooper (Ky.), 56 S. W. 144.
Massachusetts. Gott v. Dinsmore, 111 Mass. 45.
Michigan. Rudell v. Transit Co., 117 Mich. 568, 44 L. R. A. 415, 76 N. W. 380.
Minnesota. Southard v. Ry., 60 Minn. 382, 62 N. W. 442, 619.
New York. Germania Fire Ins. Co. v. Ry., 72 N. Y. 90, 28 Am. Rep. 113.
Ohio. Gaines v. Ins. Co., 28 O. S. 418.
Tennessee. Illinois, etc., Ry. v. Craig, 102 Tenn. 298, 52 S. W. 164.
Texas. San Antonio, etc., Ry. v. Wright, 20 Tex. Civ. App. 136, 49 S. W. 147; Texas, etc., Ry. v. Avery, 19 Tex. Civ. App. 235, 46 S. W. 897.
Wisconsin. Strohn v. Ry., 21 Wis. 554, 94 Am. Dec. 564.
It has been suggested that the acceptance of a bill of lading by the shipper without objection raises a prima facie presumption of assent thereto, but that this presumption may be rebutted by showing that the shipper did not know of the limitation on the liability of the carrier and the like, and did not assent thereto.39 It has even been applied to a shipping receipt, which does not on its face appear to be a contract as does a bill of lading; and it has been held that the contractual terms therein are binding upon the adversary party if he accepts such receipt as a contract between the parties and if such provisions are fairly brought to his attention.40