I can not concur in those parts of the opinion of the majority in which it is held (a) that the paragraph of the warehouse receipt and contract, which limits the defendant's liability to $10 per one hundred pounds, is invalid; (b) that the plaintiff's retention of that document for several months and her payment of the charges exacted by it did not amount to an acceptance by her of its terms; and (c) that a warehouseman is not only prevented from contracting against his own negligence, but, like a carrier, can not enforce any agreements in his favor unless he satisfies the court that the contract was a fair one for the other party.
Since everyone concedes that a warehouseman's contract which releases him from the consequences of his own negligence is invalid, we need spend no time upon that proposition of law. Upon this appeal the defendant does not argue that the evidence fails to disclose negligence upon its part. Hence, we do not need to mention those parts of the record which bear upon the issue of negligence. The main issue upon which the parties are in disagreement is whether the defendant is liable for the entire amount of the loss or only to the extent of $10 for each hundred pounds weight of the trunk. *Page 67
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. The difference between the contracting circumstances of a warehouseman and a common carrier are manifest. Most shippers are under compulsion: a choice of railroads is in many instances lacking and the business manifests many of the features of a monopoly, but, generally, there is an abundance of warehouses, and the active competition among warehousemen assures the bailor fairness of treatment. Shortly I will quote from an authority that makes clear these differences and the resulting difference in the contracting rights of warehousemen and carriers.
Before turning to the law, let us see what the evidence discloses. Before the plaintiff intrusted to the defendant her trunk of silver, which, incidentally, was only 18 inches wide, 31 inches long, and 11 inches deep at its deepest point, D.K. Dunham, a storageman who lived in the same city as the plaintiff (Roseburg), wrote to the defendant, at the plaintiff's request, and asked: "Do you maintain vaults for silver?" The defendant replied: "We do not have a separate vault for silver." The plaintiff, as a witness, admitted that she read that reply. After receiving that information, the plaintiff requested Dunham to send for one of the defendant's vans and thereupon her belongings were moved to the defendant's warehouse. The majority state: "Plaintiff had a conversation with an employee of the defendant company who came to her place." The plaintiff described that individual thus: *Page 68 "That was your driver," meaning the teamster who drove the defendant's van. It is conceded that he had no authority to make contracts on behalf of the defendant.
The plaintiff is an educated woman. She has had the benefit of instruction by "governesses and tutors" and in "a private finishing school in New York." The quoted words are hers. Her husband said that before coming to this state seven years ago, "I had a Wall Street trade entirely — investments, securities." Therefore, both were capable people. This was by no means the first experience which these two capable persons had had with bailments. The plaintiff was asked: "You have stored goods before?" and answered: "Yes, many times." She was also asked: "You were familiar with warehouse companies giving you a warehouse receipt and contract, as they are called?" Her answer was "Yes." Then she was asked: "And you had received them on other occasions?" She answered "Yes."
The plaintiff admitted that after the shipment left her home in Roseburg for the defendant's warehouse in Portland she realized from her experience with other bailments that a receipt and contract would be sent to her; in other words, she knew that written evidence of the transaction would be forthcoming.
When no document came within a few days following the shipment she returned to Mr. Dunham and expressed anxiety. He thereupon telephoned to the defendant's office and in a day or two the instrument in question came to her house. The envelope which brought it bears a post-office stamp dated August 27. The shipment left her home in Roseburg August 16 for the defendant's warehouse in Portland; hence, eleven days after the shipment the receipt and contract *Page 69 were in the mail. The defendant's witnesses accounted for the delay by explaining that August was a busy month for them and that some time was consumed in transporting the goods to Portland, in putting tags on each item, in making records for the office files, etc. The plaintiff conceded that upon receipt of the warehouse receipt and contract she read it. Her express words are "I read it." At the head of the instrument, in capital letters, are the words "Warehouse Receipt and Contract." The plaintiff's familiarity with papers of that kind is indicated by the following part of her examination:
"Q. You saw the words `Warehouse Receipt and Contract'? A. Yes, I have had these from other storage warehouses."
The plaintiff freely conceded that she read the part of the instrument containing the Limited Liability Clause. The entire document is quite brief. At its top, in heavy print, are the words "Warehouse Receipt and Contract." Under this heading are twenty-six lines of print, eleven of which consist of only a word or two. The print is not small. The first two lines acknowledge receipt of the goods enumerated in the schedule; they are followed by two other lines which limit the defendant's liability to $10 per hundred pounds "unless the value thereof is made known at the time of storage and receipted for in the schedule." The words of limitation are printed in type heavier than that of other parts of the clause. At right angles to the twenty-six lines appears this caution printed in large letters: "Read This Contract." The plaintiff conceded that she read the entire instrument, including the three words just quoted. *Page 70
The plaintiff stated that she understood the terms of the contract as she read it. When she was asked whether after reading the clause of the contract which limited the defendant's liability to $10 per hundred pounds: "Did you get in touch with the company and notify them that you —" she interrupted with the following reply: "I didn't because I considered that my silver was in a vault in their warehouse, and on the trunk that I sent I put for storage in vault, in safety vault, and they never notified me that it wasn't in a vault." She had already conceded that she had read the defendant's letter to Dunham which stated: "We do not have a separate vault for silver." But the above was her reply. Having received the warehouse receipt and contract she made no objections to any of its terms as is indicated by the answer just quoted, but, on the contrary, at once sent the defendant a check for its hauling charges and for six months' rental. She then put the document away with her valuable papers. Her words were: "I put it away with my papers, income tax reports, my checks, and so on, kept it." It is true that the plaintiff testified that she did not sign the contract and that for that reason she concluded that the instrument amounted to nothing more than an inventory of her goods. It seems manifest, however, that her signature was not required to make the instrument become effective. The latter could be accomplished by her acceptance of it without objection as well as by her signature. She also testified that she assumed that the defendant's monthly charge of $11.10 included an extra charge for vault storage of her trunk. This assumption, however, was without foundation as is indicated by the following: (1) The defendant's letter, written in response to Dunham's inquiry, *Page 71 stated: "We do not have a separate vault for silver." (2) The warehouse receipt and contract says: "The responsibility of the above company for any piece or package and its contents is limited to $10 per 100 pounds, unless the value thereof is made known at the time of storage and receipted for in the schedule;" this provision exacted not only a declaration of value, but also a notation of the latter opposite the entry of the article in the schedule; no such entry appears in the schedule. (3) The warehouse receipt states that the plaintiff's goods were placed in open storage — its exact words are: "Open storage 2nd sec 21." Open storage is, of course, not vault storage. (4) Even if a special charge had been made for the trunk, the clause limiting value to $10 per hundred pounds would still have remained unaltered. That clause, and not the monthly charge for storage, is determinative of this dispute.
From the above we see that the prevailing opinion releases this woman from the contract upon the theory that the latter was not submitted to her by the defendant in a fair and honest manner. But, as we have seen, the defendant dealt with a capable experienced bailor. Her husband, like herself, was above the average in ability. Her past experience made her realize that the defendant would submit a combination receipt and contract and her experience with other warehousemen had rendered her familiar with such documents. The combination receipt and contract covering the plaintiff's goods was not handed to the plaintiff in the defendant's office nor in a place where insufficient time was available for its careful reading, but came to her in her own home where she had plenty of time to read it. She read all of it. At the conclusion of *Page 72 her reading of the paper she made no objection to any of its provisions but, to the contrary, deposited the instrument with her valuable papers and sent the defendant a check for the amount of its charges. The remittance included six months' rental. Then six months passed in which the plaintiff manifested no objection to the terms of the contract. Finally, the theft occurred. In all of this period the combination warehouse receipt and contract remained among the plaintiff's valuable papers.
The majority state that the defendant should have told the plaintiff that in view of the low valuation of $10 per one hundred pounds it was charging a low storage rate. This holding is apparently the basis of the majority's conclusion that the defendant did not submit the contract in a fair and honest manner. The valuation clause expressly says: "The responsibility of the above company * * * is limited to Ten Dollars per hundred pounds, unless the value thereof is made known * * * an additional charge will be made for higher valuation." The plaintiff concedes that she read and understood that paragraph. It is difficult to understand how the defendant could have brought home any more effectively the low valuation and the resulting low rate. A witness for the plaintiff, who was in the employ of another warehouse concern which had a vault, testified that his employer would have charged one dollar per month rental for this trunk. He added, however, that liability would have been limited to $50. The plaintiff in reading the combination receipt and contract saw that the defendant, in calculating the amount of its monthly charge, deemed all of the plaintiff's goods, including the trunk, as worth $10 per hundred pounds. That fact in itself *Page 73 told the plaintiff that the trunk was being handled in the same way as her other belongings and that no extra charge was being made for it. In reading the instrument she also saw that all of her goods were in open storage in the defendant's warehouse and, as already sufficiently stated, the letter to Dunham, which the plaintiff read, stated that the defendant had no vault for silver storage. With all of this information before her the plaintiff would have had no additional knowledge had she received a special letter telling her that the monthly rate of $11.10 was based upon a valuation of $10 per hundred pounds, and included nothing for special attention to the trunk.
Possibly their constant reference to a delay of "about two weeks" and to "the belated warehouse receipt" is intended by the majority as an indication that the delay withheld from the defendant's contracting methods fairness and honesty. But the delay did not mislead nor prejudice the plaintiff in any way whatever. In truth, the interval was twelve days. In those twelve days nothing happened which rendered the receipt unacceptable when it reached the plaintiff. When the paper did not reach her as promptly as she had expected, she made inquiries and a day or two later the receipt was in her hands. Then, as already indicated, she read it, filed it among her records and sent a remittance to the defendant for six months' storage. Neither in her pleadings nor from the witness stand did she claim that the delay was material or had adversely affected her. In fact, when the paper came it served her purposes as well as if it had reached her sooner. It is impossible to find in the delay — especially in view of the defendant's reasonable explanation — anything that deprived the paper of its effect; *Page 74 and likewise it is impossible to find in the delay anything that warrants the majority's repeated mention of it.
A reading of the transcript of testimony seems to indicate that when the plaintiff placed her goods in the defendant's warehouse she and her husband were in circumstances that demanded economizing. They apparently were looking for low-cost storage. Six months before the bailment took place the burglary insurance on the contents of the Voyt home had expired. Its amount, which included not only the silverware but all other household items, was only $2,000. Thereafter, according to Voyt, the silver was cached around the house in secret places. After the goods were stored in the defendant's warehouse the plaintiff secured a policy of fire insurance upon them. The amount was $3,000 only. At times past when this trunk was stored it was not placed in a warehouse but in bank vaults. It was in a bank vault just before the plaintiff came to our state. Mr. Glenn Bekins, president of the defendant corporation, swore that if the trunk contained silverware of the type described by the plaintiff the proper place for it was in a bank vault and that he would have so advised her had he known of its contents. Incidentally, the monthly rate in Portland for that type of storage, upon a basis of $8,000 valuation, was $8.00. However, the plaintiff and her husband, with their extensive experience with bank and warehouse storage, chose the defendant's facilities. It had facilities for open storage only — none for room or vault storage.
Finally, the majority, after their review of the facts and some of the authorities, state: "Whether the warehouse receipt under these circumstances ever became *Page 75 the contract of the parties need not be decided in this case, for the particular stipulation concerning the agreed valuation was invalid in any event." How it was "invalid in any event" is not indicated. With this statement, as with the majority's other views that the contract was not fairly and honestly submitted to the plaintiff, I can not concur. It seems to me that the contract was fairly, openly and honestly submitted to the plaintiff. She experienced no trouble with any of its brief language. Having read the instrument, she wrote to the defendant no letter of inquiry concerning any of its terms. The monthly rate of $11.10 was clearly written in the space provided for that item. If this contract must fail on a finding that it was not fairly and honestly submitted to the bailor, warehousemen will surely find it difficult to effect contracts with limited valuation clauses which will not meet with judicial condemnation.
As already stated, I not only believe that this contract was fairly and honestly submitted to the plaintiff, but I also believe that the majority misconceive the law which is applicable to this case.
The provisions of the Uniform Warehouse Receipts Act (§§ 60-201 to 60-261, O.C.L.A.) adopted in this state in 1913, together with the ordinary rules governing the formation of contracts are, in my opinion, determinative of this case.
The majority hold that a warehouseman's right to contract is restricted to the same extent as that of a common carrier. If they are wrong in that conclusion — and I believe that they are — then their review of railroad cases fails them, for this is not a common carrier case. Elliott on Contracts, § 3099, cited by the majority, yields them scant support. An examination of the *Page 76 four decisions cited by Elliott removes the support. Two of them are English railroad cloakroom-check cases. The third and fourth say nothing upon the subject before us. The third was, in fact, a contract for special services — refrigeration. The same section of Elliott also says:
"A warehouse receipt issued by a warehouseman and accepted by the owner of goods stored, as containing the terms and conditions upon which the commodity is delivered and received, becomes the contract between the parties, * * *. The warehouseman may limit his liability by the contract contained in the receipt."
With that statement I agree. Thus, it is evident that a warehouseman effects contracts with his bailor in the same way as other contracting parties enter into similar relationships; that is, a writing is tendered and if it is accepted a contractual relationship results. The fact that a warehouseman is not subject to the contractual restrictions which the law imposes upon common carriers is well stated in Taussig v. Bode, 134 Cal. 260,66 P. 259, 86 Am. St. Rep. 250, 54 L.R.A. 774, from which the following is taken:
"* * * The cases cited by counsel in which it has been held that notices printed or stamped on bills of lading, but not signed by the consignors, do not exempt common carriers from their common-law liability, are not in point. They rest upon the peculiar nature of the public duties of common carriers and the public policy of preventing them from limiting their liability by mere notices not expressly assented to by the shippers. The principle of those decisions is very clearly stated by Mr. Justice Davis, delivering the opinion of the Supreme Court of the United States, in Michigan C.R. Co. v. Mineral Springs Mfg. Co. 16 Wall., at page 328, 21 L.ed. 302. The case of warehousemen is entirely different. There is no public policy to be infringed by stipulations limiting their *Page 77 liability for loss or deterioration caused by the inherent qualities of the articles stored, or by defects in the vessels containing them. They are not bound to receive articles offered for storage, and may make such terms as they choose to impose as conditions of their contract."
It is unnecessary in this dissenting opinion to quote from the other decisions which hold to like effect.
The fact that the bailor's silent retention of a warehouse receipt and contract constitutes his acceptance of the terms of the instrument is indicated by the following taken from § 90B, Williston on Contracts, Rev. ed.:
"* * * So one who writes a telegraphic message on a blank, offered by the company, which contains printed terms and conditions is bound by them in so far as they are not violations of public policy * * *. A shipper who takes a bill of lading or express receipt without objection should be bound by the terms of the contract of shipment legibly stated in the bill. * * * This view has found expression in the Uniform Bills of Lading Act. * * * The taking of a warehouse receipt, like the taking of a bill of lading, binds the bailor as an acceptor of the terms therein legibly stated."
Dobie on Bailments, § 45, states that the general rules of contract regulate the rights of the parties as a warehouseman and his bailor contract.
It is especially desirable that no departure should be made in this case from well-established principles of law, for, as already indicated, this case is governed in part by the Uniform Warehouse Receipts Act. That measure has been adopted by forty-nine American jurisdictions. See 1940 Handbook of the National Conference of Commissioners on Uniform State Laws, *Page 78 page 452. Section 57 of that act, being § 60-257, O.C.L.A., expressly states that the various clauses of the act should be interpreted in harmony with the decisions of other state courts construing like terms. In that way uniformity of law will be effected. It is manifest that uniformity can not be achieved through uniformity of legislation alone.
From 27 R.C.L., Warehouses, § 21, p. 966, the following is quoted:
"The uniform warehouse receipts act, which has been adopted in many states, is designed to create a uniform rule on the subject in the various jurisdictions. By its terms it is to be construed so as to effectuate such purpose, and has the effect of excluding contrary doctrines theretofore prevailing in any state which has adopted the act. In the interests of uniformity, the act should not be regarded merely as an offshoot of local law, and should not be construed in the states adopting it according to the former views of the state courts on analogous subjects."
The majority quote from the dissenting opinion in CentralStorage Warehouse Co. v. Pickering, 114 Ohio St. 76,151 N.E. 39. The quotation is inapplicable to this case. It was based upon the bailor's testimony that he had never read the warehouse receipt delivered to him. It will be recalled that the plaintiff in the instant case expressly stated, "I read it," meaning the receipt. The majority opinion (in the Ohio case) is a worthy one, especially in view of the fact that it interpreted and applied a section of the Uniform Warehouse Receipts Act which is applicable to the instant case. From the majority opinion the following is quoted:
"It is not necessary in disposing of this case to discuss the adjudicated cases of this court and the courts of other states, because the subject comes clearly within *Page 79 the provisions of the Uniform Warehouse Receipt Act enacted by the Legislature in 1909. 99 Ohio Laws, p. 400. This act is a uniform code prepared by the committee of the American Bar Association, and is identical with the provisions of four other states of the Union. Section 8458, General Code, provides the matters which a warehouse receipt must contain. It appears that the receipt introduced in evidence in this case conforms substantially to the requirements of that section. Section 8459 provides:
"`Sec. 8459. A warehouseman may insert, in a receipt issued by him, any other terms and conditions, provided that such terms and conditions shall not:
"`1. Be contrary to the provisions of this chapter.
"`2. In any wise impair his obligation to exercise that degree of care in the safe-keeping of the goods intrusted to him which a reasonably careful man would exercise in regard to similar goods of his own.'
"The necessary result of enacting a statute providing for a uniform warehouse receipt, and further providing that a warehouseman may insert terms and conditions in such receipt with well-defined limitations, is to give to a warehouse receipt the effect of a contract between the parties. If it has the force and effect of a contract, it follows that the owner of the goods stored, who has the receipt therefor in his possession, is charged with notice and knowledge of all of the terms and conditions of the receipt. This statute makes it unnecessary to review the many authorities cited as to the necessity of bringing to the attention of the holder of the receipt notice and knowledge of such terms and conditions. He must necessarily be charged with such notice; otherwise the receipt could not have any force or effect as a contract."
The material facts in that case were not substantially different from those before us. It will be observed that the court held that the bailor's retention, without comment, of the warehouse receipt gave to the instrument *Page 80 the effect of a contract. Such is the universal rule, as we saw from the section of Williston on Contracts above quoted.
Turning to Taussig v. Bode, supra, we see the application of the same principle of law that the majority of the Ohio court embraced. From the Taussig decision the following is taken:
"Counsel for the respective parties differ as to the effect of the notice printed on the face of this receipt that loss by leakage was at the owner's risk. Respondents claim: First, that the notice is no part of the contract; and, second, that even if it is treated as a binding stipulation, it could not exempt the appellant from liability for loss by leakage which, as they contend, might have been discovered and prevented if the casks had been inspected from time to time, or if they had been piled in a single tier, leaving both ends exposed to view. Both of these propositions are controverted by the appellant, and upon their determination the case seems to depend. We think it clear that the notice is a part of the contract. It was printed plainly on the face of the receipt. The whole paper is extremely brief. It was the duty of respondents to take note of its contents if they had the opportunity, and their opportunity was ample. The presumption, therefore, is that they did read it. Against this presumption there is no evidence, and none, we think, would have been admissible to show that the respondents had failed to do what their duty required them to do. Assuming, then, that they are chargeable with knowledge of its contents, they had fair warning that any loss by leakage was at their risk; or, in other words, that the appellant declined all responsibility for loss by leakage. Their acceptance of the receipt and storage of the goods with knowledge of this condition made it binding upon them as one of the terms of the contract. * * * In this case we think that it was clearly one of the terms of appellant's contract that it should not *Page 81 be responsible for loss by leakage. This, of course, would not exempt it from liability for leakage due to its fault, but did exempt it from the duty of watching these casks to detect leakage caused by defects in the casks, or resulting from any cause other than improper handling or storage."
It will be observed that Central Storage Warehouse Co. v.Pickering, and Taussig v. Bode employed nothing other than the common rules of law which govern the formation of contracts. Those same rules are applied every day in the countless transactions which take place when two parties contemplate entering into a contractual relationship. After some discussion has taken place concerning terms and after each has anticipated that the terms will be reduced to writing, the one hands to the other a writing which covers the situation as he sees it. If the other accepts the paper, reads it and says nothing, but performs the duties exacted of him by the paper, and then sees the deliverer of the paper do the things which the paper says he shall do, all courts would hold that the parties had agreed upon the terms of the contract as expressed in the writing. The Ohio and California decisions are merely illustrations of those common principles of law. To them several score more could easily be added.
The instant case is a perfect one for the employment of the same legal principles. Some preliminary correspondence took place. Then the plaintiff had the defendant's van call for her goods. Next, she expected to receive from the defendant a written repository of the agreement. When delay occurred she inquired for its cause. Two days later the paper came, whereupon she read it, placed it among her valuable papers and sent the defendant payment for its charges as expressed *Page 82 in the writing. That course of conduct certainly effected a contract.
It appears to me that when the majority declare that a warehouseman's right of contract is as restricted as a carrier's, the law governing warehousemen and the provisions of the Uniform Warehouse Receipts Act are misinterpreted and uniformity is thereby denied. Likewise, I believe that when the majority hold that the plaintiff's retention of the warehouse receipt and contract did not constitute an acceptance of the terms of that instrument, a further misinterpretation of the act just mentioned takes place. I do not believe that Normile v. Oregon NavigationCo., 41 Or. 177, 69 P. 928, supports the majority view. Quite to the contrary, I am convinced that the necessary implication of that carefully reasoned decision is contrary to the majority's position. Many of the decisions reviewed by the majority readily distinguish themselves. For instance, in one of them the court held that the warehouse receipt did not constitute the contract between the parties because it was not received until after the goods had been destroyed.
With the statement made by the majority that an agreed value, so far below true value that it impairs the warehouseman's duty to employ adequate care, will not be countenanced, I am in agreement; but that principle can have no place in this case. No averment in any of the pleadings lays a foundation for its consideration. That legal principle is not mentioned in any assignment of error nor in any of the briefs.
For the above reasons, I dissent.
RAND, J., concurs in the result of this dissent. *Page 83