The gist of the plaintiff's declaration is for negligence on the part of the defendants in the delivery of a box of poultry, which, as common carriers for hire, they undertook to carry from Conway, in this state, to Haverhill, Massachusetts, and safely deliver to one Merrill. It is obvious that there can be no recovery upon the declaration as it stands, because it is found as a fact that the defendants carried the goods safely to their place of destination, and used all reasonable care in endeavoring to deliver them to the consignee, but were unable to find him. But inasmuch as application to amend may be made at the trial term, and leave probably granted upon terms of indemnity, the case has been considered as if the declaration were in accordance with the facts.
In the absence of any statute upon the subject, the law is now well settled that common carriers may by special contract limit their ancient common-law liability, at least against all risks but their own negligence or misconduct. Squire v. New York Central Railroad Company, 98 Mass. 239,245, and cases cited.
By the receipt or bill of lading delivered to the plaintiff as the contract of the defendants, and which, so far as appears, he took without objections, and to which, in the absence of fraud or imposition, it must be presumed that he assented (Grace v. Adams, 100 Mass. 505, 507, Bank v. Adams Express Co., 93 U.S. 174, Kirkland v. Dinsmore, 62 N.Y. 171, Hoadley v. Transportation Co, 115 Mass. 304, 306), it is expressly stipulated that the defendants shall not "be held liable except as forwarders only;" and so when the goods were safely carried to their place *Page 516 of destination, and the defendants were unable, in the exercise of proper diligence, to deliver them to the consignee for the reason that they could not find him, their responsibility and obligation as common carriers terminated, because they had done all they contracted to do and all they were paid for doing. But although the contract was for the transportation and delivery of the goods, and not for storage, nor for their preservation against the laws of nature or their own inherent defects (Rixford v. Smith.52 N.H. 355), nevertheless the defendants were not absolved from all duty and responsibility in respect to the goods when their liability as common carriers ended, because they then became depositaries by force of law, and as such were bound to take such reasonable care of them as they knew, or should have known, was necessary for their safety or preservation; and upon this point the knowledge of their agent at Conway as to the character of the goods must be deemed to be the knowledge of the defendants.
But while as depositaries they were bound to take care of the property, it was only for the accommodation and benefit of the owner and not of themselves, and therefore their liability was for gross negligence only (Smith v. R. R., 27 N.H. 86), by which is meant the failure to bestow the little care due from them as simple depositaries; for by whatever epithet negligence may be characterized as to degrees, it is simply the failure of a party from whom care and diligence are due to use the care and diligence which the situation requires. Whether these defendants used such care obviously depends upon a variety of considerations, such as the nature of the property, its condition and value, the expense and safety of returning it to the plaintiff, the probability of speedily finding the consignee, the state of the weather, their facilities for storage, the extent of this kind of business done by them at their Haverhill office, and upon all the facts and circumstances of the case; and for this reason we cannot say, as matter of law, whether it was a legal duty incumbent on the defendants either to store the goods in a refrigerator, or to return them to the plaintiff. It follows, that the question on this point submitted by the referee for decision must be decided by himself, and the report must be recommitted for this purpose.
But one other question arises in the case, and that is as to the effect of the plaintiff's failure to give notice of the loss as required by the terms of the receipt.
It has been held in this state that a notice unassented to by the shipper is of no avail to restrict the liability of the carrier (Moses v. B. M. R. R., 24 N.H. 71); but the liability may be restricted by contract. Ib.; Barter v. Wheeler; 49 N.H. 20, 30, 31. Such contracts almost uniformly contain a condition relating to the time and manner of presenting claims for damages; and the courts are said to have been liberal in sustaining the condition. Laws. Cont., Carriers, s. 120. Still, it has been held that a receipt containing a clause exempting an express company "from any loss or *Page 517 damage whatever, unless claim shall be made therefor within ninety days from the delivery to it" of the goods, will not bar a suit against the company for non-delivery of the goods themselves — that not being a suit for loss or damage (Porter v. Express Co., 4 S.C. 185); that such a clause is not a condition precedent to a plaintiff's right to recover, but rather in the nature of a limitation, and so cannot be availed of upon trial unless set up in the defendant's answer (Westcott v. Fargo, 61 N.Y. 542); and that a contract stipulating that all claims for damages should be presented at a certain office of the company for settlement did not make such presentation of them a condition precedent to the company's liability, and that their readiness at that office to make settlement went only in defence of interest and costs, and not to the cause of action.
But without regard to these authorities, we think the stipulation as to notice cannot be distinguished in principle from the ordinary condition in insurance policies requiring the insured to furnish preliminary proofs, in case of loss, within a specified time, and to be executed and verified in a particular manner; and the doctrine is well established in this state that where the proofs are furnished within the time limited, and no objection is made to their sufficiency, but the objection to payment is put by the underwriter upon other grounds, all defects in such proofs will be regarded as waived. Taylor v. Ins. Co., 51 N.H. 50, 54, 55, and cases cited. If, therefore, the defendants, upon receipt of the letter from the plaintiff's attorney stating the circumstances of the loss and claiming damages in the sum of $15.25, did not seasonably call the attention of the plaintiff or his attorney to the failure to give notice as required by the receipt, they are now estopped to deny the sufficiency of the notice.
The report is recommitted.
Exceptions sustained.
CLARK, J., did not sit: the others concurred.