#### Moritz Neuman, Respondent, *v.*The National Shoe and Leather Exchange, Appellant.

(Supreme Court, Appellate Term,

February, 1899.)

Negligence — Failure of customer to read the whole of a receipt of a collection agency, limiting its liability, excused.

A customer of a collection agency, who had placed a claim with it, received from it later a paper which, on its face, was an ordinary receipt but, on its back had thirty lines of fine print, the last of which stipulated that the agency did not “ guarantee clients against loss arising from the dishonesty of an attorney ”. The attorney to whom the claim was sent defaulted and the agency was sued by the customer. He testified that he did not know of the limitation; that his *389attention was never directed to it, and that he could not read or write English very well.

Held, that his omission to read the whole paper was not *per se*negligence. That as the jury had found in his favor upon the question, whether he received the receipt with notice of its contents or with notice that it contained a special contract, he was entitled to recover. MacLean, ,T., dissented.

Neuman v. National Shoe & Leather Exchange, 25 Misc. Rep. 412, affirmed.

Atpeal from a judgment of the General Term of the City Court of the city of New York, affirming a judgment of the Trial Term, entered on the verdict of a jury in favor of the plaintiff.

Hastings & Gleason (Martin Saxe, of counsel), for appellant.

Samuel Schlesinger (A. H. Parkhurst, of counsel), for' respondent.

Leventritt, J.

The plaintiff in this action placed a claim for collection in the New York office of the defendant, a Massachusetts corporation, doing business as a general collection agency. The managers of the New York office, Eddy and Jones, delivered to plaintiff a receipt, the effect of which is the crucial question involved. Upon its face, it was an ordinary receipt, containing no terms, conditions or limitations, nor any notice directing attention to any of the terms, conditions or limitations appearing on its reverse side, where under the caption of *“*Obllection Department ” were thirty or more lines of fine print. All except the last five pertained to rates of commission and those read as- follows:

> “ In sending drafts to banks and claims to attorneys, the utmost care is taken to employ only those whose responsibility is beyond question. We do not, however, guarantee clients against loss arising from the dishonesty of an attorney or the suspension of a bank.”

The defendant employed an attorney in Lynn, Massachusetts, to collect the claim. This attorney had been previously retained by the defendant in a number of instances, had been well recommended, was personally known to one of its officers, and had always been prompt and honest in making collections and remitting the proceeds. In this particular instance, however, the attorney collected but failed to remit.

*390The plaintiff admitted possession of the receipt but failed to remember whether it was handed to him at the time of -placing tbe claim for collection or subsequently transmitted to him by mail. There is no satisfactory evidence that the delivery of the receipt to the plaintiff was contemporaneous with the placing of the claim and the employment of the defendant. Plaintiff testified that he could not read or write English fluently, that his attention w'as never directed to the existence of any condition, and that as a matter of fact he never read or knew of any limitation to the defendant’s liability in the event of collection. A verdict was rendered for the plaintiff for the full amount of his claim and from the judgment thereon entered the defendant has appealed, contending that the acceptance of the receipt constituted a contract between the parties, and that the clause quoted, being a part thereof, was binding on the plaintiff and relieved the defendant from liability in view of the fact that the loss arose through the dishonesty of the attorney, to whom the collection had been intrusted. We do not consider this contention so-und in law.

Where a party receives a paper, which, from the circumstances of the transaction, he has a right to regard simply as a receipt or voucher and no notice is given to him that it embodies the terms of a special contract, or is intended to subserve any other purpose than a receipt, his omission to read the paper is not *per se*negligence, and he is not, as a matter of law, bound by its terms. Grossman v. Dodd, 63 Hun, 326; affirmed, 137 N. Y. 599. The question whether in a particular ease the party receiving such a receipt accepted it with notice of its contents, or with notice that it contained the terms of a special contract, so as to require him to acquaint himself with its contents, is one of evidence to be determined by the jury, and in the case at bar, the jury under a charge, eminently fair to the defendant, resolved that question in favor of the plaintiff.

The defendant in order to relieve itself from liability is bound to establish the contract. Grossman v. Dodd, 63 Hun, 326; Blossom v. Dodd, 43 N. Y. 264; Madan v. Sherard, 73 id. 329. It was, at least, incumbent upon the defendant 'to show the implied assent of the plaintiff thereto (Woodruff v. Sherrard, 9 Hun, 324), and that was not made to appear. The plaintiff asked for no written contract; he requested no receipt. In the absence of any circumstance or intimation indicating it to be anything other than an ordinary voucher, he was justified in so regarding it. The minds of the *391parties did not meet on the subject of a contract embracing the restriction invoked, hence it cannot avail the defendant.

The appellant calls our attention to a class of cases clearly distinguishable from the one under review. They relate to the construction placed upon conditions in telegraph blanks, bills of lading, shipping and express receipts and other commercial instruments of like description. In such, it has been held that the uniform character of those instruments and the nature of the business to which they relate create a presumption of knowledge of the attendant conditions and limitations, or that by using certain blank forms upon which the terms and restrictions confront the subscribing party, he is deemed to have assented to them. No such presumption exists respecting a paper purporting to be an ordinary receipt, hence the necessity of proof to establish notice to the plaintiff of the undisclosed clause of exemption from liability, which the defendant inserted in a manner not calculated to attract attention.

The judgment must be affirmed, with costs to the respondent.

Freedman, P. J., concurs.

MacLean, J. (Dissenting.)

In the absence of evidence tending to show that the limitations, under which the defendant took claims for collection, were indorsed upon the receipts in a manner not likely to attract attention, and it appearing that the receipt given in this instance was of the form used for several years by the defendant, with whom the plaintiff had had repeated dealings, I am of opinion that he was bound by the limitation fixed by the defendant at the time he delivered the claim at its office, as he testified himself, and when, as the officer of the defendant testified, and he did not deny, the plaintiff received the receipt.

Judgment affirmed, with costs to the respondent.