Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-13
time of this transaction the agent, Davis

time of this transaction the agent, Davis,
had none of these blanks on hand.
1t was also proven by them, that when
Mrs. Womack was asked what the boxes
contained, she replied that they contained
"beds, bed clothing, wearing apparel,
etc., but did not disclose that they con-
tanned bonds, notes, or anything of that
character, the question being pressed
upon her no further"
Upon this, various questions are made
and argued as to the action of the court
below. l. His Honor, the Circuit Judge,
was asked to instruct the jury that if the
charges for the transportation of the
goods were paid in Confederate Treasury
notes, this being the consideration of
their undertaking, the contract would be
| void, and no recovery could be had.
This instruction was refused, and we
think properly. Conceding, for the argu-
ment, that Confederate Treasury notes
loaned would not form a good considera-
ton for q promise to pay money, we
think the doctrine has no application to
this case. The consideration of the I'M
dertalling upon the part of the plaintiff
| in error was that the goods should be
then and there delivered to them, to be
carried for hire to be then or afterwards
paid TO them. For this they had lien
upon the goods. If they chose voluntarily
to receive the charges in advance
in Confederate money, we hold that this
did not relieve them from their obligation
to carry the goods according to the con-
tract or from liability for the loss of them.
1t has furthermore been held at the pres
ent term that contract founded upon g
consideration of Confederate none" is
not necessarily illegal.
2. The court was asked to instruct the
| jury, that if a receipt was executed by
the agent of the company upon the de-
livery of the goods, this receipt would be
the highest evidence of the contract, and
no parol evidence could be heard to es-
tablish the contract.
In response to this ''bis Honor told the
jury that if the proof showed, that re-
ceipt was executed at the time of the de-
livery of the goods, and that it was lost
or uuintentionslly misplaced, then rar0l
evidence is admissible to prove the con
tents thereof, and that the plaintiff hav-
ing made cath of the loss or unintentiOnal
misplacing of the receipt, parol evidence
of its contents might be looked to.
The affidavit referred to does not appear
in the record. The record purporis to
contain all the eViderce. This affidaVz
however was no part Of the evidence to
be submitted to the jury; it simply served
the purpose of laying the foundation for
the introduction of parol evidence of the
contents of the paper. The plff. in error
having failed tOincorporate this affidavit In
the bill of exceptions, we must presume
that the affidavit was made as ated By
his Honor in his charge and met the re-
! quirements of the law in such cases and
that the evidence was upon this ground
properly admitted. Again according to
the evidence this receipt did not purpoIt
to contain any contract, but was simply
an Acknowledgement Of the receipt of
the goods for transportation. In such a
case the receipt of the goods, for
transportation, without any express
stipuistions ss 10 the measure of
liability, the law supplies the contract and
fixes the rights and liabilities of the
parties, and the mere delivery of the
properly, which is the only fact intended
to be established by these receipts, may as
well be proven by parol evidence as
otherwise.
3. The defendant offered in evidence
receipt which seems to have been a
printed form, such as the express COM |
pany were in the habit Of using. This re-
ceipt contains many limitations upon the |
cOmpany's common law liability, SIS
carriers, and in fact provides that they |
shall only be liable in case of gross negli-
gence or fraud of their agents, and throws
the burthen of proving this upon the other
party, and upon this, court was asked 10
instruct the jury, that if Davis was only
authorized by the company to execute re-
ceipts in this from them he was only
special agent of the company, and they
would not be bound by any receipt he
might give in different form.
Upon this His Honor instructed the
Jury that they could not look to this Ie.
ceipt or COPY of receipt a. all, ''as there
was no original" and further if Davis
assumed to act as the agent OF the Elk
press Company, at Prospect Depot, and
the company recognized his acts as such
agent, they were bound by his acts, and
if the company gave private Instructions
to Davis, their agent, and such instruc-
tons were not made public and brought
home to the plaintiff he would not be
bound thereby.
1t will be observed that the receipt
offered in evidence does not purport TO be
either the original or copy of the one
used in this case.
1t is receipt dated goth April, 1865,
to n Bleakley for one bundle valued at
500, marked A. J. Brady, Greensboro,
Ga. Whether this receip t was real trans
action and was actually given as it pur-
ports, or was only blank filled With
fictitious names does not appear. The
object in either case was the same, mere
" to show the form of receipt used by
the company. There is no evidence to
show that this receipt, or any one like it,
was brought TO the attention of the de-
PENDANT IN error, or his wife or agent, at
the time the goods were delivered, or any
intimatiOn given to them, at any time,
that the company's liability was to be
anything less than the law attached in
such cases.
The question whether common carriers
may limit their liability by notice of this
character, or even by an express contract,
has beea much discussed, and upon it
there is a conflict of judicial opinion, and
the question becomes one of great practi-
cal importance, owing to the vastly in
creased number of business transactions
of this character; but it need not be de-
finitely settled in this case.
The case of Turner VS., Wilson, 7 Yer
$40, was an action of this character, for
failing to carry and deliver cotton accord
ing to contract In thst q receipt was
given specifying that the dangers of the
river only were excepted Evidence was
offered of custom which, was generally
known, by which the carrier was TO be
liable only when the loss occurred from
negligence or dishonesty upon his part.
The court excluded the evidence and
held the carriers bound by the common
law liability, except only to the extent it
was limited by express contract. In this
case there is no proof that the conditions
annexed to this receipt formed any part
of the contract; that the defendant in
error had any notice, or was in any man
ner connected Herewith, and his Honor
was not in error in excluding the evidence, |
although the true reason for doing 50 was
not fully and accurately stated.
The case of Walker VS.. SkipTith Meigs'
Reports SOP, was an action to recover the
value Of baggage delivered to the agent
of the defendants, who were the propri-
etors of a stage line. The defendants
proved that Lyle, the agent, was instructed
that no package or parcel, of any kind,
should be sent upon the stage, unless it
constituted a part of the baggage of a
passenger, or was under the care of
passenger, except at the risk of the owner
ar nersOn sending such Deckapp Or arti-