Citations
- 47 Ill. App. 561
Full opinion text
Mr. Justice Waterman.
The contract of shipment having been made in Hew York, is to be governed, as to its nature and interpretation, by the law of that State. Mich. Cent. R. R. Co. v. Boyd, 91 Ill. 268.
Proceeding upon this principle, appellant claims that the evidence introduced by it upon the trial of this cause, shows that the law of that State is that when a receipt, such as was offered in this case, is received without objection, it becomes the contract of the parties; that all prior oral negotiations are merged therein, and that it is not necessary for the carrier, in order to avail himself of the exemptions contained therein, to show that the shipper had knowledge thereof or assented thereto.
We are disposed to agree with counsel for appellant in this contention, and if the receipt had remained the only written evidence of the contract of shipment, we should be disposed to hold appellee bound by its conditions, although the shipper was ignorant of its terms.
The undisputed evidence in this case is, that in accordance with the custom of business, and as Oelsener was a frequent shipper, it must be said the understanding of the parties, the receipt was surrendered and a bill of lading issued in its stead. This having been done, we do not think that the receipt can be considered as expressing the contract of the parties.
Oelsener retained no copy of the receipt he surrendered, and it would be a most violent presumption to hold that after, in accordance with the custom of business, he surrendered it and took a bill of lading in its stead, it still continued to be the written expression of the contract between the parties. The acts of the parties unmistakably show that nothing of the kind was understood by either. Had the receipt been a plain, unconditional agreement to carry the goods to Chicago, and had Oelsener, before the goods had been taken out of the station house, surrendered this and taken the bill of lading given to him, we can not believe that appellant would have contended that the receipt constituted the contract of shipment.
The fact that the receipt and the bill of lading contain substantially the same limitations of liability on the part of the carrier, does not tend to show that the receipt remained the contract between the parties. Other circumstances and conduct show that the appellant never expected that the receipt was to be the contract of shipment, but that it, in accordance with the custom of business, tendered the bill of lading as a statement of the contract it wished to be bound by. Where it is the custom and understanding that the receipt given upon the arrival of goods at a freight house is to be surrendered, and a bill of lading issued in its stead, and such course is pursued, we do not think that, under the law of the State of Hew York, the receipt is treated as amounting to a contract of shipment, but rather as a mere acknowledgment of a receipt of goods for shipment upon terms implied, or theretofore or thereafter to be. agreed upon.
In the present case, the verdict of the jury must be taken as establishing that prior to the reception of the goods the carrier agreed with the shipper to transport them in