The decision of this court in the recent case of The GermaniaFire Ins. Co. v. The Memphis and Charleston R.R. Co. (72 N.Y., 90) is decisive in this case that the receipt or bill of lading delivered to the plaintiff is to be regarded as the contract between the parties, instead of the parol agreement alleged to have been made previously, but on the same day, between the plaintiff and the person in charge representing the agent. The decision in Bostwick v. The Baltimore and Ohio R.R. Co. (45 N Y., 712) was not *Page 353 intended to impair the general and well-settled rule that when goods are delivered to a carrier for transportation, and a bill of lading or receipt is delivered to the shipper, he is chargeable with notice of its contents and is bound by its terms, and that prior parol negotiations cannot be resorted to to vary them. In that case the property had been shipped by the carrier before the bill of lading was delivered, and was beyond the reach or control of the shipper. This court held that the carrier having shipped the property after the parol contract and before delivery of the bill of lading, was bound by the parol contract, and could not afterwards change it without the express consent of the shipper; but to apply the rule in a case like this would destroy the protection which the delivery and acceptance of a bill of lading affords. The delivery of the property and bill of lading are generally regarded as simultaneous acts, although the delivery of the property necessarily precedes the making and delivery of the receipt or bill of lading, and in most cases some parol negotiations precede the delivery of the property.
In this case the receipt was made immediately upon the receipt of the property, and delivered very soon after, the intervening time being while the plaintiff was getting his team preparatory to starting home. By accepting the contract without objection, the other party had a right to assume that he assented to its terms, and the fact of not reading it cannot be interposed to prevent the legal effect of the transaction. (Long v.N.Y.C.R.R. Co., 50 N.Y., 76; Belger v. Dinsmore, 51 id., 166; Steers v. L., N.Y. and Phil. S.S. Co., 57 id., 1;Maghee v. C. and A.R.R. Trans. Co., 45 id., 514.) It appears that in this case the plaintiff did in fact read the paper on the next day, and knew and understood its contents. If he was not satisfied with its terms, he had then abundant opportunity to reclaim his property or insist upon a modification of its provisions, but he did neither. If he relied upon the statement of the agent, that the property would be shipped within two weeks, it must have been upon faith in the opinion of the agent, and not as a binding contract with *Page 354 the company, as the bill of lading expressly notified him that station agents had no authority to vary or change the terms of a contract of shipment as expressed in the paper delivered. Although the receipt or bill of lading must be taken as the contract between the parties, there is nothing in its terms which will protect the company from liability if the delay and consequent loss was occasioned by its negligence, or that of its servants or agents. The record presents the case in a peculiar aspect. The complaint is on the parol contract to ship the property within two weeks. The trial judge charged that the parol contract was binding and obligatory instead of the bill of lading, but charged also that unless the delay was produced by the negligence of the defendant or its agents, the plaintiff could not recover. The General Term held that the evidence not being sufficient to establish gross negligence, the plaintiff could not recover on that ground, but also held that the parol contract was binding, and as the property was not shipped within the two weeks specified, the plaintiff was entitled to recover.
Another embarrassment is that the refusal to the several requests to charge which were intended to present the point as to the binding force of the two contracts was excepted to in such a general form that it is doubtful whether in strictness it is available in this court. If the trial judge had ignored the parol agreement, the verdict could not be disturbed unless the case is destitute of any evidence to sustain the finding of negligence, because the defendant is liable if the injury was produced by its negligence. Nor is it necessary to establish gross negligence as the General Term seems to have supposed. A want of ordinary care by a carrier, if it causes injury, is sufficient.
We think that there must be a new trial. The charge of the judge that the parol contract was the contract between the parties may have had a material influence upon the jury, upon the question of negligence, and although the exception to the request is not sufficiently specific, the same question was presented during the trial, and an exception properly taken. If an *Page 355 amendment of the complaint is necessary, it can be obtained as a matter of course. Allegations of negligence would not substantially change the cause of action. The failure to perform either contract through negligence would be a breach of duty. (See Bostwick v. Balt. and O.R.R. Co., 45 N.Y., 712.)
The judgment must be reversed, and a new trial ordered, costs to abide the event.
All concur, except ALLEN, J., absent, and ANDREWS, J., not sitting.
Judgment reversed.