Argued on rehearing June 16; former opinion adhered to July 7, 1942 ON REHEARING 127 P.2d 360 In support of a petition for rehearing, briefs have been filed by amici curiae in which our stated grounds for decision were challenged. The petition for rehearing was allowed, and we have again heard the parties upon oral argument.
Apprehension has been expressed by amici curiae that the decision may adversely affect the established course of the warehouse business in Oregon. Such apprehension, we think, is not warranted. This is not a case that affects the liability of warehousemen who faithfully perform their duties as such. The question here involved becomes relevant only when the warehouseman as a wrongdoer claims contractual exculpation from the full liability to which wrongdoers in general are held; that is, only when he claims that by reason of contract he should not be liable for the full *Page 84 amount of the actual damage he has caused. A decision applicable only to such cases can hardly have the suggested devastating results upon any responsible business.
Counsel for the warehousemen's associations assert that they are "chiefly concerned with that portion of the majority opinion that applied to them the same rule of law as heretofore has been applied to common carriers, namely: the requirement that they prove that their agreement with the depositor has been freely, fairly and honestly made." They see no reason why that rule should be applied to them.
We cited Normile v. Oregon Navigation Co., 41 Or. 177,69 P. 928, a case against a common carrier. We must inquire to what extent the doctrine of that case should be applied to warehousemen. Our opinion in this respect requires clarification. If the language used by the court appears to apply the rules governing common carriers with too much generality to warehousemen, it is possible that we relied too strongly on the position emphatically taken by the defendant itself. Referring to the Normile case, we read in defendant's brief:
"The Normile case is directly in point with the case before this court on this appeal."
and again:
"The defendant relies upon this case as controlling authority on the validity of the stipulated value clause in a contract when the rate is based upon the declared or stipulated value."
Apparently the defendant did not then fully appreciate the dangers of applying the doctrine of that case to warehousemen. However, defendant is not bound by its sponsorship of the Normile case, and the ultimate *Page 85 responsibility for our own words rests, of course, upon this court. We did not and do not mean to say that the situation of warehousemen and common carriers is identical, but we do find that the decision in the Normile case is persuasive in several particulars. The claim of the plaintiff was tried as an action on the case for negligence. We held it was unnecessary for plaintiff to introduce the warehouse receipt in evidence. If there was a special contract restricting the common law liability of the warehouseman, it devolved upon the warehouseman to allege and prove it. Such is the specific holding in the Normile case as to a common carrier, and we find it equally applicable to a warehouseman.
In quoting from the Normile case, it was not our purpose to indicate that the court should ponder the fairness of every contract between bailor and warehouseman to determine whether the price charged for storage is just and reasonable in view of the agreed valuation of the goods.
Counsel has cited, perhaps inadvertently, the case of Noyes v.Hines, 220 Ill. App. 409. That case lays down and applies the very rule which they fear we have adopted in the case at bar. The plaintiff, Noyes, deposited a Gladstone bag and contents in a parcel room, paid ten cents and accepted a check which provided that "the person accepting this check hereby agrees in consideration of the low rate at which it is issued that no claim in excess of $25 shall be made, * * * for the loss * * * of any valise * * *." The bag was lost and the plaintiff sued.
*Page 86"It was agreed between the parties in open court that the plaintiff was relying upon a pure bailment for hire only and not on the relation of carrier and passenger."
The court held:
"We think the weight of authority is to the effect that when a person accepts a ticket from a bailee in receipt for a parcel deposited with him, he is bound by the terms and conditions of that receipt in so far as he has reasonable notice of the same and in so far as the same are reasonable."
The court found that the notice of limited liability was reasonably given both by the terms of the check and by a prominently posted sign. The court also found that the condition itself was a reasonable one. It observed that no notice had been given to the bailee of the value or the contents of the bag and held that the plaintiff was limited in his recovery to the stipulated sum of $25. This is a direct authority that a warehouseman can avail himself of a provision limiting liability in the event of his negligence, only in so far as notice is fairly given and the substance of the agreement is reasonable, but we need not go so far concerning the substance of an agreement. It is conceded that the defendant's business is one effected with the public interest, and we have held that contracts limiting their liability for negligence by stipulations of an agreed value should be carefully scrutinized, but it is the matter of the making of such agreements, the fairness of notice and the reality of assent and consideration rather than the fairness of the bargain if made which requires scrutiny. It was in this light that we quoted the Normile case.
*Page 87"If, however, upon the other hand the stipulation as to the value is fairly and honestly made as a basis of the carrier's charges and responsibility it will be sanctioned * * *."
And again, speaking of such stipulations:
"In either case, it becomes a part of the contract on which the minds of the parties meet and on which they act." (Italics ours.)
In our original opinion, we called attention to the fact that the warehouse receipt was not prepared until several days after the goods were delivered to the bailee, and that the bailor never signed it. We did not then and do not now hold that the signature of a bailor was indispensable to the making of a binding contract or that a receipt to be valid must be delivered when the goods are received. These facts were, however, properly noticed. At the instant that the defendant took possession of the plaintiff's goods there arose a contract based primarily on the common-law obligation of a bailee. In view of the Uniform Warehouse Receipts Act, that contract was deemed to have embraced also the various terms required by the statute, but that implied contract did not embrace every conceivable condition, consistent or inconsistent, reasonable or unreasonable which a bailee might later elect to place in the receipt under the provisions of O.C.L.A. 60-202. The original contract arose by implication of law. If it was later changed, it was incumbent upon the defendant to allege and prove a meeting of minds with consideration for the change. Normile v.Oregon Navigation Co., (supra). (The warehouse receipt was plead as a partial defense to an action for negligence.) We recognized that there were "conditions under which the receipt and detention without objection of a warehouse receipt by the bailor may be properly found to bind him to the terms thereof." When, at the inception of the bailment a receipt or claim check is delivered containing a limitation of *Page 88 value clause, and no higher value has been declared, and the bailor accepts and retains it without objection, several authorities hold him bound thereby, even though he is unaware of the condition, but the great weight of authority holds that the limitation must be called to his attention. Healy v. N YCentral H.R.R. Co., 153 A.D. 516, 138 N.Y.S. 287, affirmed 210 N.Y. 646, 105 N.E. 1086 (a leading case citing the provisions of the Uniform Warehouse Receipts Act and directly opposed to the holding in the Ohio case of Central StorageWarehouse Co. v. Pickering, cited by the minority); Union BusStation Inc. v. Etosh, 48 Ohio App. 161, 192 N.E. 743, decided after the Pickering case, and see note Ohio Opinions Anno., Vol. 5, p. 151, 20 Iowa Law Review, 680, 9 Cincinnati Law Review, 193; 12 Tulane Law Review, 458; Denver Union Terminal Ry Co. v.Cullinan, 72 Colo. 248, 210 P. 602, 27 A.L.R. 152 (1922);Cothren v. Kansas City Laundry Service Co. (Mo.) 242 S.W. 167; 67 C.J. 504, 505, § 98; Brown v. Hines, 213, Mo. A. 298,249 S.W. 683, (1923).
In Jones v. Great Northern Ry. Co., 68 Mont. 231, 217 P. 673, 37 A.L.R. 754, it appears that plaintiff deposited traveling bags in a parcel room, and they were negligently lost. He paid ten cents per parcel. The check provided that liability in case of loss is not to exceed $10. Plaintiff testified that he had seen the printed matter on the checks but did not read it. It was held that he could recover the full value of the bag. Concerning this case, a note in 22 Mich. Law Rev. p. 155, states:
"The decision in the instant case is squarely on the principle that without actual knowledge and assent by the bailor to the conditions on the parcel check there is no creation of a contract limiting the bailee's liability. In every American case, but *Page 89 one, in which the question of actual notice to the bailor of the conditions on a parcel check limiting the bailee's liability was considered, the decision is in accord with the principal case."
Even when the warehouse receipt is executed and delivered after the implied contract has been in force, we recognize that the parties may make a new contract and further that acceptance and retention without objection of a receipt may bind the bailor to its provisions if the requisites for the formation of a contract are satisfied under the rules herein set forth. But we think that acceptance and retention without objection can result in a binding contract only if such conduct by the bailor can under the circumstances be fairly said to manifest assent to the new proposed contract.
In Goldstein v. Robert Dollar Co., 127 Or. 29, 270 P. 903 (1928) the jury found that plaintiff entered into an oral contract with the defendant, Robert Dollar Co., for the shipment of an auto. Ten days after the shipment was made a bill of lading was received by plaintiff signed not by defendant but by the Dollar Steamship line. The auto was damaged. Plaintiff, suing, relied on the oral contract, while defendant plead that it was no contract with plaintiff, and that any oral contract was merged in the bill of lading and that plaintiff having accepted and retained the latter without objection, was bound thereby. The court said:
*Page 90"Plaintiff's case is based on the common law liability of carriers while the defendant relies upon the bill of lading. If the issuance of the bill of lading had been contemporaneous with the delivery of the automobile, defendant's position would be far more tenable. However the evidence establishes that the bill of lading was issued after the shipment was made."
The court said:
"We inquire, can the carrier make a new contract without the consent of the shipper? The mere issuance of the bill of lading and its receipt by the plaintiff without objection will not of itself establish a contract. There must be a meeting of the minds of the contracting parties."
True, this was a common carrier case, but we think its principle applies here. It was there held that whether the minds of the parties met was a question for the jury, but in that case the issue was simply whether plaintiff had agreed that the shipper named in the bill of lading be accepted as the contracting party. There was no uncertainty as to the meaning of the bill. Under the circumstances of the case at bar, a reading of the receipt would fail to disclose what the proposed contract really was, and the burden of proof was on the defendant.
Most of the controversies in which a bailee has relied upon a purported agreement limiting value have been simple check room cases. The receipt usually provides that recovery shall be limited to a specified sum. It contains no provision for the declaration of a higher value with a correspondingly higher charge. When a bailor accepts and retains such a check, his attention being called to it, he knows the full and exact basis of the charge. He knows what he has paid and what he will receive if his goods are lost. The necessities of commercial usage have no doubt influenced the courts to read consent and consideration into the transaction.
The case at bar rests upon a different basis. Here the provision by which the defendant would bind the plaintiff reads as follows: *Page 91
"The responsibility * * * is limited to $10 per hundred pounds unless the value thereof is made known at the time of storage and receipted for in the schedule an additional charge will be made for higher valuation."
The exhibit attached to appellant's abstract of record shows that a new sentence is commenced with the words "an additional charge will be made * * *." The $10 limitation was contingent. If the value was made known and receipted for, a prediction was made that a higher charge would be exacted. We have held that the substantial value was sufficiently made known to the defendant, and the schedule shows that the defendant receipted for a "trunk silver."
Let us consider on the facts whether defendant has shown a meeting of the minds. Defendant had a right, but no duty, to charge more than its lowest rate. Neither the receipt nor any other information disclosed to the plaintiff what basic rate would be charged for a higher valuation. It failed to show the weight of the trunk of silver. It merely showed that the storage rate on the silver plus 136 other items was $11.10 per month. For the first two weeks (as stated by defendant itself, or eleven days, as calculated in the dissent) the defendant would have been liable for the full value of the silver if negligently lost. Defendant seeks to prove a later valid contract limiting the value to a nominal sum. Plaintiff's only information prior to the bailment was to the effect that the basic rate was "3/4 cents per cubic foot." The witness, Bekins, testified that the defendant charged on the basis of cubic measurement. The measurement when the goods were first stored was 960 feet. At that rate the charge would apparently be $7.20. But Bekins *Page 92 explained that they used a basic rate schedule which in effect also charged the bailor for lost space in the warehouse between the top of the pile and ceiling. On this basis the rate charged would be increased to $8.60 per month, but the actual charge was $11.10 per month, and this Bekins explained by stating that they made a separate flat charge of fifty cents each for two rugs and fifty cents each for three chairs, thus raising the basic $8.60 to $11.10. None of these facts, except the final charge of $11.10 appeared in the receipt or were communicated to the plaintiff. Thus, when plaintiff, having notified defendant of the substantial value, read the receipt, there was nothing to show that she was being charged on the basis of a valuation of $10 per hundred pounds. On the contrary, the $11.10 rate materially exceeded any rate which could have been figured from the information communicated to the plaintiff. If the storage charges were, as they appeared, greater than the basic rate, then plaintiff might reasonably have assumed that the charge of $11.10 was not based on the rate of $10 per hundred pounds of sterling silver. She testified directly that she expected that she was paying a higher rate.
If, in the check room cases, the precise limitation which clearly appears on the face of the receipt must be called to the actual notice of the bailor, we think it still more evident that the bailee, having been expressly notified of the character and substantial value of the goods and having accepted them under a contract implied in law, must, if it would later substitute a limited written contract, call to the attention of the bailor not only the rate charged but also it must by some means make it clear that the known character *Page 93 and value of the goods are no longer the basis of its liability and that it is in fact fixing the specified rate on a proposal for a $10 per hundred weight valuation.
The essential elements of a bargain are still required before a bailee can exempt himself from the consequence of his negligence, and, notwithstanding some loose language in Central StorageWarehouse Co. v. Pickering (supra), we think it is inconceivable that the statutory authority to insert additional terms in a warehouse receipt should render those terms part of a binding contract unless in some manner it is made to appear that the minds of the parties met with mutual assent and consideration upon the additional terms. See Healy v. N.Y. Central H.R.R.Co. (supra). In this case there was no substantial evidence that the parties' minds ever met on the terms of any contract modifying the original undertaking of the bailee, and the defendant's partial defense must fail.
If this were a case in which a schedule of rates showing a basic rate and the higher charges made for higher valuations appeared upon the receipt or was on file pursuant to law, a different situation would arise.
Reliance is again placed on Taussig v. Bode, 134 Cal. 260,66 P. 259, 54 L.R.A. 774, 86 Am. St. Rep. 250, which we have previously discussed. Distinguishing the case from those involving common carriers, the court said of warehousemen:
"There is no public policy to be infringed by stipulations limiting their liability for loss or deterioration by the inherent qualities of the articles stored or by defects in the vessels containing them."*Page 94
But the provision in that case was against liability for loss by leakage. It was expressly stated that the clause did not exempt from liability for negligence.
The matter of public policy appears in a different light when the provision in the receipt limits recovery in the event of negligence.
We acknowledge the authority of the rule developed by the courts which holds that parties may make a binding contract concerning the value of the goods bailed and which will be effective even in the event of negligence, and we acknowledge that such contracts do not per se violate the statute, O.C.L.A. 60-203, which authorizes the insertion of terms in a warehouse receipt.
"* * * provided that such terms shall not * * * in any wise impair his obligation to exercise that degree of care * * * which a reasonably careful man would exercise * * *."
Such is the rule of our law, but it does no harm for the legal theorist to indulge in a moment of realism and to observe that an agreement valuing $4,184.50 worth of sterling silver at $10 per hundred pounds in fact emasculates a statute which forbids provisions impairing the obligation of due care. Candor requires assent to the statement in Columbia Law Review, that the "provision in the Uniform Warehouse Receipts Act against exculpation of the warehouseman has been judicially emasculated by way of the valuation device." (37 Columbia Law Review, p. 262.) The fact remains that the statute does express the public policy of the state concerning limitations of liability for negligence, and we think there is much force as applied to warehousemen in the *Page 95 previously quoted statement from the Normile case, which was in part as follows:
"If the purpose of the contract was merely to place a limit on the amount for which the defendant shall be liable, that is to say, exempt it in any measure from full liability as respects the value of the property concerned * * * then clearly as to any losses resulting from negligence it cannot be helped."
In Gulf Compress Co. v. Harrington, 90 Ark. 256,119 S.W. 249, 23 L.R.A. (N.S.) 120 (1909), plaintiff placed cotton bales in defendant's warehouse, and they were destroyed by fire. The warehouse receipt, which was delivered to the plaintiff, specified, "not responsible for loss by fire." The court said:
"The receipt issued is in the form prepared by the defendant itself. The exemption set forth therein is couched in language of its own selection, and, according to well-settled rules of interpretation, should be construed in the strongest light against it. Judge Thompson, in his work on Negligence (Volume 1 No. 1143), says that `there is a tendency of the law to discountenance stipulations in contracts between parties whereby one of the parties undertakes to exempt himself from liability for his own negligence' and that this tendency is discovered in decisions of the courts declining to construe provisions in contracts so as to bring them within such exemption, even in cases where public policy would not forbid it if clearly expressed."
In Denver Union Terminal Ry. Co. v. Cullinan (supra), the plaintiff checked a traveling bag in the check room at the Union station. There was a notice posted above the check room window and a similar notice printed on the check delivered to the plaintiff, containing a limitation of liability to $25. The negligent *Page 96 loss of the goods was admitted. Plaintiff did not see the notice nor read the limitation and had no actual notice or knowledge of the limitation. The court said:
"The transaction under consideration was a bailment for hire in the course of the bailee's general dealings with the public. In such cases contracts limiting liability for negligence are generally against public policy. 6 C.J. 1112, Denver P.W. Co. v. Munger, 20 Colo. App. 56, 77 P. 5; Pilson v. Tip-Top Auto Co., 67 Or. 528, 136 P. 642; Parris et al., v. Jaquith, 70 Colo. 63, 197 P. 750.""* * * it is clear that there can be no presumption in favor of a limitation of liability. He who alleges it must be held to strict proof and that the posted notice is not of itself sufficient is settled in Parris et al. v. Jaquith, 70 Colo. 63, 197 P. 750."
Held: There was no contract limiting liability.
Again it is held that a limited liability clause should be specific, and where actually or presumably drawn by the warehouseman, contracts should be strictly construed against him and in favor of the bailor. (67 C.J. 505.)
In The Ansaldo San Giorgio I v. Rheinstrom Co., 294 U.S. 494,498, 55 S. Ct. 483, 79 L. Ed. 1016, the court said:
"Two so-called valuation clauses have been in frequent use. One is a true limitation agreement. It recites that a sum named in the bill of lading is the agreed value of the goods, or their value per unit or per package, in the absence of the shipper's declaration of a higher value; that the rate is fixed with reference to the specified value, and if a greater be declared a higher rate will apply; that in consideration of the rate to be charged, the carrier's liability for loss or damage shall be limited to the stipulated value.*Page 97
"Such a stipulation, we have said, is not enforcible unless the shipper, for agreeing to such a limitation of the carrier's liability, receives a consideration consisting in the offer of a lower rate as against a higher rate offered for the service without such limitation; or, as has been said, the rate is tied to the release." (Italics ours.)
It is for these reasons that the court must cautiously inquire, if, in purported agreements concerning value, there is a real bargain with real mutual assent and consideration or merely an arbitrary attempt to limit the amount of liability for future negligence. On the facts of this case that question becomes one of law.
In the dissenting opinion in the case at bar, it is said:
"The majority hold that a warehouseman has no greater bargaining rights than a common carrier and that, therefore, he, like a common carrier, must submit to the bailor such fair contracts and in such a fair and open manner that both contract and the manner of contracting will win judicial approval."
We did not intend to pronounce so broad a rule, and what we have said should demonstrate that we do not so construe our original opinion. A new contract modifying the terms of a previous implied contract must be fairly arrived at as a basis of the warehouseman's charge and responsibility and one on which the minds of the parties meet and on which they act. The requisites for the formation of a new contract must be satisfied, but such a rule does not imply that the courts will pass upon the fairness of the terms of the contract if made. We are not suggesting that the reasonableness per se of rates charged by a warehouseman are subject to judicial review in the absence of statute. *Page 98
From the brief of an amicus curiae, we read as follows:
"The respondent not having placed in issue the making of the contract, we will proceed on the assumption that the court's conclusion is based upon the invalidity of the stipulation as to value, of itself, and independent of any theory relating to the making or execution of the contract."
The "assumption" upon which they proceed is unwarranted. An examination of the abstract of record disclosed that the defendant by answer plead a first affirmative defense and also a "further answer" by way of partial defense, and the plaintiff filed a reply "to defendant's first affirmative defense and further answer, denying generally each and every allegation contained therein", except as admitted. The question as to the making or execution of the contract was in issue, and counsels' conclusions are based upon a false premise. Again, it is urged upon us that "in those warehouse receipt cases where the facts were similar to those in this case the courts have held that a provision for limitation of liability such as this is valid and enforceable." Counsel cite in support five cases: CentralStorage Warehouse Co. v. Pickering, 114 Ohio St. 76,151 N.E. 39; Missouri Pac. R. Co. v. Fuqua, 150 Ark. 145, 233 S.W. 926;Rosenberg v. San Francisco Storage Co., 81 Cal. App. 715,254 P. 909; Taussig v. Bode Haslett, 134 Cal. 260, 66 P. 259, 54 L.R.A. 774, 86 Am. St. Rep. 250; Noyes v. Hines, 220 Ill. App. 409.
The facts in the cases cited are not similar to those in the case at bar. In the Pickering case, the record disclosed no testimony that the storage company was advised of the contents or value of the goods. Mo. Pac. R. Co. v. Fuqua was a simple check room case with a provision that the carrier will not be responsible for *Page 99 damage for any amount in excess of $25. There is nothing to show that the bailee was advised concerning the value of the goods. InRosenberg v. San Francisco Storage Co. the warehouse receipt was similar in form to that in the case at bar, but the court observed that the appellant (warehouseman) was not apprised of the value of the parcels then or subsequently received for storage. Taussig v. Bode has been already distinguished. InNoyes v. Hines the court observes that the bailor did not tell anybody what the contents of his bag were; he had no conversation whatever. Thus, the distinguishing feature of the case at bar does not appear in any of the cases cited.
In order that he who runs may read, we deem it appropriate to add that there will not be found, either in our original opinion or in this opinion, any assertion to the effect that the defendant employed unfair and dishonest means in inducing the plaintiff to adopt the paper as the agreement of the parties.
It is true that in our original opinion we stated that the provision "as to an alleged agreed value of $10 per hundred pounds was not fairly and honestly made as the basis of the defendant's charges and responsibility. It is not such a stipulation `freely and fairly executed by the parties involved' as is referred to in the Normile case." In employing the language from the Normile case we intended no implication that the defendant was dishonest. What we did imply was that there was lacking the elements of a fair and honest agreement as the basisof the defendant's charges and responsibility. To assert that there was lacking a fair and honest agreement concerning the basis of responsibility is a far cry from an assertion that an agreement was made but was induced by dishonesty. *Page 100
We have said that the retention of the warehouse receipt did not manifest an acceptance of the provision in question and have repeatedly indicated that there was no meeting of minds upon the specific limitation of value. We of course agree that the minds of the parties had met upon some contract of bailment. Aside from that provision in the warehouse receipt concerning the limitation of liability to an agreed value, the obligations of the warehouseman were the same under the warehouse receipt as they were under the contract implied in law at the inception of the bailment. It is true that the trial court instructed the jury that the warehouse receipt was the contract of the parties, but it also instructed them that the limitation of value clause was void. It follows, as we have said, that the cause was properly submitted to the jury upon the common-law obligations of the warehouseman which were identical to the obligations of the warehouseman imposed by the warehouse receipt, with the exception of the valuation clause.
The learned author of the dissenting opinion expresses the view that the case of Normile v. Oregon Navigation Co. (supra) is opposed to the position which we have here taken. It is true that the decision in the Normile case was in favor of the defendant, but let us see if the bill of lading there resembled the warehouse receipt here. In the Normile case the authorized agent of the plaintiff signed a bill of lading which recited:
"That the said company has this day received from the shipper (P. Schrader) 8 head of horses, 2 head of mules, to be transported * * * at the rate of * * * trf. * * * per head, which is less than the tariff rate for the transportation of live stock at carrier's risk, and is given said shipper in part consideration of his agreement to the limitation *Page 101 of the liability of said company as common carrier, as herein set forth, upon the terms and conditions following, which are accepted and agreed to by the shipper as just and reasonable. * * * And it is hereby further agreed that the value of the live stock to be transported under this contract does not exceed the following mentioned sum, to wit: Each horse, one hundred dollars; each mule, one hundred dollars; * * * such valuation being that whereon the rate of compensation to this company for its services and risk connected with said property is based."
Thus, it appears conclusively that in the Normile case the contract of the parties stated expressly not only the price charged, but also that it was less than the tariff rate and was given in consideration of the stipulated and agreed value of the goods. Furthermore, there is no evidence in the Normile case that the shipper ever notified the carrier of any higher valuation of the articles shipped either at or prior to the shipment. The facts of the Normile case differ essentially from the facts in the case at bar, but the learned dissertation by Judge Wolverton concerning the law, from which we have quoted, was appropriate for consideration in the case at bar.
We are fully aware of Bekins' testimony that the trunk of silver was charged for on an assumed value of $10 per hundred pounds. As we have repeatedly indicated, the point is that the wording of the warehouse receipt in view of the known and declared facts concerning value did not bring home to the plaintiff when she read the receipt any notice that the warehouseman was charging her on the basis of the $10 valuation. Had the warehouse receipt contained provisions similar to that of the bill of lading in the Normile case, an entirely different situation would have been presented. *Page 102
The warehouse receipt mailed to the plaintiff contained the words: "An additional charge will be made for higher valuation." A substantially higher valuation had been made known to the defendant. Why, then, should the plaintiff be charged with knowledge that the $11.10 rate did not contain an additional charge for higher valuation? Again, how can the plaintiff be bound to a $10 valuation unless it was part of a bargain for a lower rate, and how can she be said to have bargained for a purported consideration the existence of which she was unaware? Knowledge of the wording of the warehouse receipt she had; knowledge that it offered her a bargain rate in consideration of a nominal valuation, she did not have. She knew the total rate charged. She did not know that in fixing it, defendant had disregarded the information she had given it concerning value.
For the foregoing reasons we adhere to the original opinion.
KELLY, C.J., concurs in this opinion.