York Company v. Central Railroad
TROUT & SON shipped at Memphis, on the Mississippi, a large quantity of cotton, on board a steamer belonging to the Illinois Central Railroad Company, common carriers; which by the terms of the bill of lading was to be delivered at Boston, Massachusetts, the consignees paying $4.75 per bale, fire and the unavoidable dangers of the river only excepted.' The bill of lading which referred to the cotton as shipped by Trout & Son' was signed in four; two copies being given to Trout & Son, of which they retained one, forwarding the other to the York Company in New England, for whom the cotton was intended. In the course of the transit the cotton was destroyed by fire.
The company now sued the carriers in the Circuit Court of Illinois for damages. Trout was examined on a commission, and having stated that his firm were but agents of the York Company and that the shipment was made on its account as owner, proved the fact and contract of shipment (which last he stated was in the form of a bill of lading) and the value of the cotton. But he did not produce on his examination in chief any original or copy of the bill itself.
The carriers, who wished to rest their case on the fire clause in the bill, inquired of him on cross-interrogatories whether one or more of the bills had not been delivered to him, and directed him, if one had, to annex 'the same or a certified and proved copy to his deposition, and to let the same be properly identified by the commissioner in his return.' The witness answering that one of the bills had been delivered to him annexed 'a true copy of it from his books.' The fire clause appeared in it; though the witness stated that the cotton was shipped on the steamer before the bills were signed; that he had not examined the bills; that 'his attention was not called to the fire clause,' and that his firm had no authority to ship for their principals with that exemption.
On the trial, the plaintiff not having made objection during the execution of the commission nor by motion to suppress, objected to the reading of the answers to the cross-interrogatories which showed a copy of the bill; the ground of the objection being that the contract was shown to be in writing, and that no foundation had been laid for secondary evidence either by notice to produce the original bill or by evidence of its loss. But the court overruled the objection.
The defendant had judgment. On error four objections were made to it here.
1. Because it was doubtful whether as common carriers the defendants could exempt themselves from risks by fire.
2. Because if they could, still that Trout & Son, who were really but agents of the York Company, could not give their assent to such exemption.
3. Because if they had given such assent no consideration had been paid by the company, in a reduced rate of fare or otherwise, for this restriction of the carrier's common-law obligation.
4. Because the copy of the bill of lading, in the absence of notice to produce the original or of proof of its loss, was improperly allowed to be read.
Mr. Hitchcock, for the owners of the cotton: The law imposes upon the carrier a definite and absolute duty, and he ought to be under an incapacity to contract in derogation of that duty. Such contracts are usually an empty form of words, imposed by a party who has no right to propose them, upon another who has no power to repel them, and who rarely, in any sense, assents to them.
The reasoning of Judge Cowen, in the New York cases of Cole v. Goodwin  and Gould v. Hill,  and of Judge Nesbitt, in the Georgia case of Fish v. Chapman,  is more satisfactory upon principle and authority than that of later cases, establishing a somewhat different rule. The late Mr. H. B. Wallace, the American annotator of Smith's Leading Cases, in the last edition of that work published before his death, in 1852, regarded the question whether a carrier, when charged upon his common-law responsibility, could discharge himself from it by showing a special contract, assented to by the owner, as one then still open. Some decisions since then tend perhaps to a different view; though many of the best judges and text-writers regret their tendency, and hold them to strict limits.
1. It is certainly settled that any kind of notice, though brought home to the shipper, will not exonerate the carrier from the liabilities which the law annexes to his employment; though it may perhaps be too late to assert confidently that if the owner expressly assents to such notice and agrees to be bound by it, and there is sufficient consideration for it, it shall still be without effect. 
2. But it is shown that Trout & Son, though they had authority to ship, had no authority to agree to any restriction on the carriers' common liability. Their authority to forward was certainly, of itself, not an authority to make an unusual and special contract, restricting the liability in a most important feature. The contract, made without the assent of one party to it, differs in no respect, then, from a general notice brought home to the shipper, which, as we have said already, is universally held inefficacious.
3. Even, however, had Trout & Son been authorized thus to contract, the burden lies upon the carrier to prove a consideration for the special exemption from a common-law liability, and without such consideration the contract has no obligation. In all the cases in which effect has been given to these special contracts with carriers, by which their common-law liability was limited, this essential requisite of a contract has been found. Thus, in The New Jersey Steam Navigation Co. v. Merchants' Bank,  in this court, a full consideration is expressed in the instrument, which is, moreover, signed by the parties and under seal. So in The Illinois Central Railroad Company v. Morrison,  a full consideration in the reduction of the rate of freight was proven, and the contract was also signed and sealed. So in Kimball v. The Rutland Railway,  a similar consideration was shown, and also the assent of the plaintiff in express terms.
4. The rule that notice to produce, or the loss of, the original, should be shown before parol evidence of the contents of a written instrument is admissible, will hardly, in its general force, be questioned. This case should present no exception. Will it be said that the copy was first objected to on the trial? This is true. But from the nature of the case, it could not have been properly objected to at any other time. The objection was a substantial and not a formal one; and such objections are always heard at the trial. There is no rule or practice of the court requiring any other than formal objections to be stated in writing before the cause is called for trial. If a motion to suppress had been urged before the trial, it would have been said, in reply, that the testimony might be made competent before it would be offered, by showing a notice to produce the original, or that it was unattainable, by destruction or otherwise. Could the court assume, for the purpose of suppressing a deposition, that the requisite proof would not be made to render it competent?
Mr. Tracy, contra.
Mr. Justice FIELD delivered the opinion of the court.
^1 19 Wendell, 251.
^2 2 Hill, 623.
^3 2 Kelly, 349.
^4 See 1 Smith's Leading Cases, 6th American edition, pp. 396-406; and at p. 387 an able opinion by Thompson, C. J., of Pennsylvania, to this effect.
^5 6 Howard, 344.
^6 19 Illinois, 136.
^7 26 Vermont, 252.
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