Voyt v. Bekins Moving & Storage Co.

The sole issue in this case is whether or not the document entitled Warehouse Receipt and Contract is the contract of the parties. The issue may be stated even more specifically: Do the facts before us require this court to hold, as a matter of law, that the plaintiff, upon receipt by her of the warehouse receipt and contract, adopted it as the written memorandum of her agreement with the defendant. The controlling facts are free from dispute. In stating them we shall employ the testimony of the plaintiff. The facts are: (1) The plaintiff, who lived in Roseburg, desired to place her goods in storage with the Dunham Transfer Company of that city. When she called, Dunham replied that he had no facilities for storing household furnishings. (2) Upon his own volition, Dunham wrote to the defendant and asked it to "quote us your storage rates on household goods" and also asked it: "Do you maintain vaults for silver?" (3) The defendant replied by mail: "The basic rate is 3/4 of a cent per cubic foot per month, * * *. We do not have a separate vault for silver, * * *." (4) After receipt of the defendant's reply, Dunham read it to the plaintiff on the telephone. (5) The plaintiff shortly *Page 110 asked Dunham to have the defendant send a van for her goods. (6) When the van reached the plaintiff's home she showed the defendant's driver a trunk, which was marked "For Storage in Safety Vault", and told him that it contained silver of very great value. (7) The van was loaded with the plaintiff's goods and carried them to the defendant's warehouse in Portland. (8) The plaintiff had had many transactions with warehousemen and knew from her experience that after their receipt of goods they send to the bailor a document entitled Warehouse Receipt and Contract. For instance, she testified:

"Q. Well, you were familiar with warehouse companies giving you a warehouse receipt and contract, as they are called? A. Yes.

"Q. And you had received them on other occasions? A. Yes."

(9) When ten days had passed and the plaintiff had received no word from the defendant concerning her goods, she went to Dunham and expressed her anxiety. Dunham thereupon telephoned to the defendant's office. (10) On the twelfth day after the plaintiff had parted with her goods she received through the mails a document entitled Warehouse Receipt and Contract. It was, as its title indicates, (a) a receipt and (b) a contract. The contract part is short and contains, among other items, the limitation of liability clause in question. It stated that the plaintiff's goods were placed in "open storage." (11) The plaintiff read the document including the limitation of liability clause. When asked whether she understood the meaning of the contract, she replied, "Certainly." (12) After she had completed her reading of the document she mailed the defendant a check for the amount of its charges. *Page 111 (13) Having mailed the check, the plaintiff returned the warehouse receipt and contract to the envelope which had brought it to her and then placed it among her valuable papers. (14) The plaintiff at no time objected to Dunham or to the defendant concerning any part of the warehouse receipt and contract; nor did she make any inquiries concerning any of the provisions of that instrument. (15) Although the warehouse receipt and contract stated that the defendant's responsibility "is Limited to Ten Dollars per hundred pounds, unless the value thereof is made known at the time of storage and receipted for in the schedule," the plaintiff made no entry opposite the item in the schedule entitled "Trunk silver", being the object which she says was worth thousands of dollars. A blank space was provided opposite all items for any entries which she might care to make. (16) Although the liability limitation clause stated: "An additional charge will be made for higher valuation" (meaning, of course, higher than $10 per hundred pounds), the plaintiff paid no additional charge of any sort. (17) The plaintiff recognized that the defendant's liability to her was limited to $10 per hundred pounds in the event of the defendant's inability to return her goods, and therefore she obtained $3,000 of fire insurance upon her goods. We say that she so recognized; in no other way can there be explained the fact that she secured the insurance. (18) In all of the six months' period that passed before the theft occurred, the warehouse receipt and contract remained among the plaintiff's valuable papers and was still in the envelope which brought it to her when she called upon her attorney after the theft had taken place. (19) The plaintiff never intimated to anyone in any way that the warehouse receipt *Page 112 and contract did not faithfully recite the terms of her agreement with the defendant. As a witness, she did not assail its verity nor did she claim that she had misread it — she merely expressed a belief that since it lacked her signature it never became a contract and was nothing more than an invoice.

We are satisfied that many transactions take place daily in substantially the same manner as the above. In all of them some preliminary conference or correspondence takes place, but before the negotiations ripen into a contract the transaction discussed in them gets under way. The parties, however, expect to evidence their agreement with a writing. After performance has started, one of the parties prepares a memorandum of the proposed agreement and mails it to the other. The recipient reads the paper, makes no objections to its terms and files it away. When we say that counterparts of the transaction now before us occur daily, we have in mind, for instance, the insurance business — fire, life, casualty, etc. We also have in mind the vast volume of business which results in the issuance of bills of sale and bills of lading. It is unnecessary to mention by way of illustration other types of business in which the writing which evidences the agreement is prepared by one of the parties and mailed to the other for his inspection and adoption.

We see from the foregoing that many agreements are evidenced by a memorandum prepared by one of the parties and sent to the other, not for his signature, but for his unexpressed acceptance. The signature undoubtedly would be welcome, but the delay attendant upon securing it causes it to be waived when not volunteered. In all of these instances the sender of the written memorandum depends upon the recipient to *Page 113 promptly manifest his dissent if the terms of the writing are not satisfactory. He will construe silence as acquiescence. Likewise, and what is highly important, he depends upon the law to construe silence in the same manner as he interprets it. If silence is not so construed, carriers, insurers, wholesalers, warehousemen and a large number of other business enterprises will have to change their methods of contracting. They will no longer be justified in interpreting silence as acquiescence. Normally, courts follow well-established business practices and do not hold them ineffective. A significant example is the judicial attitude toward the commercial transaction known as accounts stated.

From the above we see that there is nothing unique, unusual or out of the ordinary about the transaction now before us. Possibly, however, we ought to make two exceptions. One of these is the fact that the plaintiff is a well-educated woman who had had much experience with warehousemen before she entered upon her transaction with the defendant. The other is the fact that the plaintiff, upon receipt of the warehouse receipt and contract, read it. She answered "Certainly" when she was asked whether she understood it.

The majority's holding that the above-reviewed evidence wholly fails to indicate in any manner whatsoever that the plaintiff adopted the warehouse receipt and contract as the written memorandum of her agreement with the defendant imperils hundreds of other transactions in which the same contracting methods are pursued. The holding of Mr. Justice BAILEY that the above circumstances should have been submitted to the jury will subject to uncertainty similar writings issued by carriers, insurers and others *Page 114 who employ the same method of contracting. None of them will know whether the papers which they possess are in fact contracts until some jury has passed upon the matter.

Much is said in the opinions written by Justices BRAND and BAILEY that the situation before us is unique inasmuch as an implied contract came into effect the moment the defendant took possession of the plaintiff's goods. At that moment the defendant became bound to exercise reasonable care for the safeguarding of the goods. Had it breached that duty it would have rendered itself liable for the market value of the goods. But by glancing at any treatise on the subject of contracts, it will be seen that frequently parties proceed with an undertaking before their agreement has been reduced to writing. Hence, there is nothing whatever extraordinary about this feature of the case. Implied contracts can always be terminated by express contracts. It is essential that we bear in mind the fact that both parties expected that a written memorandum of the agreement would be prepared.

After the opinions of Justices BRAND and BAILEY have stressed the fact that an implied contract came into effect the moment the defendant accepted the plaintiff's goods, both intimate that the plaintiff received no consideration if the warehouse receipt is deemed the memorandum of the agreement. Both proceed upon the assumption that the implied agreement required the plaintiff to pay only 3/4 of a cent per cubic foot for the storage of her goods. For instance, the opinion of Mr. Justice BAILEY, referring to the implied agreement, says: "And the plaintiff agreed to pay for such services `3/4 of a cent per cubic foot per month' * * *." Presumably he means *Page 115 impliedly agreed, because she certainly never expressly agreed to pay any amount whatever, except through the acceptance of the warehouse receipt and contract. A moment's reflection will readily show that the defendant was not restricted by the implied agreement to charge for the storage of her goods only 3/4 of a cent per cubic foot per month. Dunham's inquiry was: "Please quote us your storage rate" and the defendant's reply was: "The basic rate is 3/4 of a cent per cubic foot per month." Note should be taken of the word "quote" and of the incompleteness of the correspondence concerning the nature of the contemplated transaction. With those matters in mind, a glance at § 25, Restatement of the Law, Contracts, especially at illustration No. 2 following that section, will make clear the fact that the correspondence effected no contract. Since the exchange of those two letters wrought no contract, the defendant was not bound to give the plaintiff the benefit of the basic rate unless she was content with the minimum features upon which the basic rate was computed, and was also willing to enter into a contract. Until an express contract was effected the defendant was at liberty to charge the plaintiff the reasonable value of its services. If that is not true, the most that the defendant could have charged for the plaintiff's trunk, containing, according to the plaintiff, thousands of dollars worth of silver, was three cents per month. (Its cubic content was less than four cubic feet.) The absurdity of the result shows that there must be something wrong with the calculations of the proponent of the charge. Let us, therefore, go back to the correspondence.

It will be observed that the defendant's reply to Dunham quoted "the basic rate." "Basic", according *Page 116 to the dictionaries, means "of, pertaining to, or forming a base; fundamental, essential." The word "base", according to 7 C.J., 932, when used as an adjective, means "below; inferior." A standard dictionary, in defining base, says: "The point or line from which a start is made in any action or operation; thus, a price used as a unit from which to calculate other prices is often called a base." A basic rate, manifestly, is the starting point for the computation of the eventual rate. To it is added whatever additional charges are made for extra services which the customer desires. In other words, it is a minimum rate for minimum service. Glenn Bekins, president of the defendant corporation, swore that the basic rate under consideration assumes a valuation of $10 for each hundred pounds of goods stored. A bailor who manifests a higher valuation and desires a correspondingly higher responsibility from the defendant is charged, according to that witness, 1/10 of 1 per cent of declared value in excess of $10 per hundred pounds. Bekins said that an item declared by the bailor to be worth $8,000 and weighing 150 pounds would be charged $7.90 per month. The uncontradicted evidence indicates that other concerns charge $8 per month for storing a trunk with contents valued at $8,000. The plaintiff paid rates approximating these at other times when she stored this trunk. These circumstances indicate the significance and meaning of a basic rate. They also show that the defendant would not have agreed to store the plaintiff's trunk for three cents a month and thereby render itself liable for thousands of dollars.

Before reverting to the controlling issue, it seems desirable to take note of another statement contained *Page 117 in the opinion of Mr. Justice BAILEY. It follows: "The rate which the defendant charged the plaintiff for the storage of the trunk of silver was, according to the defendant's testimony, the same rate quoted by the defendant to the transfer company * * *." That statement is misleading. The defendant miscalculated the cubic contents of the plaintiff's goods as only 960 cubic feet and computed its charge upon that amount. As a matter of fact, the cubic contents were considerably larger. But 960 multiplied by 3/4 (3/4 of a cent per cubic foot) would produce only $7.20 as the monthly rate. The actual charge, it will be recalled, was $11.10. In addition to the 960 cubic feet of goods, the plaintiff had a davenport, two overstuffed chairs and two rugs. For each of these the defendant charged the plaintiff 50 cents per month, or a total of $2.50. That sum added to $7.20 totals $9.70, which is less than the monthly rate of $11.10 which was charged. As a matter of fact, the basic rate of 3/4 of a cent per cubic foot was actually basic in operation. To it was added a fraction of a cent representing the bailor's portion of the space occupied by common passageways in the building such as elevator shafts, stairways and aisles. The record indicates that national organizations composed of warehousemen prescribe that method for the application of a basic rate. In that way the $7.20 became expanded to $8.60, and thus we have the $11.10 monthly rate.

From the foregoing we see that the $11.10 monthly charge was not computed upon a simple application of the basic rate. We also see that when the defendant sent to the plaintiff the warehouse receipt and contract it offered her a valuable consideration for her acceptance of it. The consideration was two-fold: (1) *Page 118 an abandonment of the defendant's right to charge the plaintiff the reasonable value of storing her goods; and (2) a willingness to contract for a fixed period of time which, as selected by the plaintiff, was six months. It should be noted that the defendant's willingness to forego its right to charge the reasonable value of its service was a substantial detriment to the defendant and conferred a substantial benefit upon the plaintiff. Had it not been willing to forego that privilege the charge for the trunk alone would have been $7.90 per month. In return, its tender of the monthly rate of $11.10 was dependent upon the plaintiff's willingness (a) to be bound by the contract, and (b) to accept a valuation of $10 per hundred pounds for her goods. Thus, we see that the offer of the contract by the defendant to the plaintiff was accompanied with a valuable consideration in her favor in the event that she accepted it. It gave her the benefit of a minimum rate — a basic rate computed upon minimum valuations of her goods and minimum responsibility upon agreement of the parties.

Having cleared the case of nonessentials, we return to the controlling issue: Do the above facts demand a holding that the warehouse receipt and contract became the written memorandum of the agreement of the parties?

As we have already said, the only reason given by the plaintiff from the witness stand in support of her claim that the warehouse receipt did not amount to a contract is the absence of her signature from the document. The majority, however, concede that her signature was not necessary. They are clearly right and we share in their view. That disposes of every issue voiced by the plaintiff. Mr. Justice BRAND'S *Page 119 opinion goes on, however, and says: "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."

Before comparing Mr. Justice BRAND'S statement of the applicable principle of law with the statements in the textbooks, let us remind ourselves that in all likelihood more contracts are effected in the manner employed in this case (submission of a writing to a party who is expected to manifest his acceptance, if that is his choice, not by a word or his signature, but by his silence) than by any other way of contracting in writing. The issue is therefore one of great importance.

Silence, like words, may be equivocal. A paper may be sent to a person who is under no duty to speak or take any action. Upon the other hand, if the circumstances bind him to speak, his silence is not ambiguous.

In the case before us it is worthy of observation that the plaintiff had requested the defendant to send its van for her goods, receive them and store them in its warehouse. She, therefore, expected to enter into a contractual relationship with the defendant. Certainly, she expected to take some action — the minimum would be payment of the defendant's charges. This is, therefore, not an instance in which a document, contractual in nature, was sent to someone who had not asked to enter into relationship with the sender. It is clear that the plaintiff expected to do more than pay the defendant's charges — she expected to contract with it. She knew from her past experience that after a warehouseman receives the subject of the bailment *Page 120 he sends to the bailor a warehouse receipt and contract. She, therefore, knew that upon her receipt of the document it would be incumbent upon her to accept or reject it. Further, pursuant to her request, she had been quoted a rate. The quotation was a basic rate and when the warehouse receipt and contract came into her hands she saw that it proposed to charge her for storage $11.10 per month. The paper told her that the charge was made upon an assumed valuation of $10 for each hundred pounds of her goods and that the defendant's liability to her "is limited to Ten Dollars per hundred pounds." It stated that her goods were in open storage and that if she wished the defendant to render itself responsible for a greater sum, she should enter in the schedule opposite the respective items the greater liabilities she desired.

It is manifest that under the above circumstances the plaintiff could not assume, when she received the warehouse receipt and contract, that she was under no duty to speak and that she could employ silence unless she wished it to be interpreted as acceptance. Silence under the above circumstances could not be deemed ambiguous. She had expressed a desire to enter into a contractual relationship with the defendant and now that the contract was in her hands for acceptance or rejection, she was compelled to make a choice.

What the plaintiff did upon receipt of the instrument shows clearly that she recognized the duty which was incumbent upon her. She sent the defendant a check for $11.10 which, as we have shown, defrayed the defendant's charges computed on the basis of minimum valuations and minimum responsibility on the defendant's part. About the same time she secured $3,000 of fire insurance upon her goods, manifesting *Page 121 thereby her knowledge that the defendant's liability under the contract was less than the value of her belongings. The evidence indicates that insurance is a cheaper form of protection than the higher storage rates that are charged when a warehouseman assumes full liability. Thus, we see that the duty to speak is one which the plaintiff recognized.

The foregoing makes it clear that the plaintiff did not resort to silence. She spoke and by remitting payment to the defendant of its charge expressed her acceptance of the contract which it offered to her. It is well established that acceptance may be manifested by doing the act which the other party requests. Restatement of the Law, Contracts, § 29, states the principle of law which is applicable to the situation. It says:

"An offer may invite an acceptance to be made by merely an affirmative answer, or by performing or refraining from performing a specified act, or may contain a choice of terms from which the offeree is given the power to make a selection in his acceptance."

The warehouse receipt and contract which the defendant sent to the plaintiff as the offer of a contract contained "a choice of terms" for her; that is, it permitted her to impose upon the defendant a greater liability by entering in the invoice higher values. It said: "An additional charge will be made for higher valuation." The plaintiff rejected that choice. But the proffered contract invited "an acceptance to be made by merely * * * performing * * * a specified act." That is, by remitting the storage charge expressed in the contract — $11.10. That is the alternative the plaintiff chose. By performing that "specified *Page 122 act" she accepted the contract. Section 73 of 13 C.J., Contracts, states the same principle thus:

"An acceptance of an offer may be by act, as where an offer is made that the offerer will pay or do something else, if the offeree shall do a particular thing. In such a case performance is the only thing needful to complete the agreement and to create a binding promise."

Thus we see that the act of the plaintiff in remitting payment to the defendant of the charge stated in the warehouse receipt and contract manifested her acceptance of that document as the written expression of the contract.

Justices BRAND and BAILEY indicate a belief that the remitted payment was based upon the charges exacted by the previous implied contract. That supposition, however, is unwarranted. The charges under the implied contract had never been calculated, and the parties did not contemplate a continuance of that arrangement; nor did they expect that the rate should be based upon quantum meruit basis. The warehouse receipt and contract which the plaintiff held in her hand for acceptance or rejection plainly said: "The rate of storage on these goods shall be $11.10 for each month." The figure $11.10 was inserted in the document by a typewriter and stood out prominently upon the page which contained virtually nothing but print. The plaintiff, it will be recalled, expressly admitted that she read the document — her positive words were: "I read it." It is true that she testified: "When my charges were $11.10 I presumed that was an additional charge for the storage of my furniture, — silver in the vault." Her explanation might be acceptable were it not for the fact that the paper in her hand *Page 123 told her that her goods were in open storage and that the rate of $11.10 was based upon an agreed value of $10 per hundred pounds and a corresponding limitation upon the defendant's liability.

The law is well settled that an offeree can not convert the terms of an offer into something else by explaining that he read the instrument in some manner other than its true import. Williston on Contracts, § 94, says:

"It follows from the principle that manifested mutual assent rather than actual mental assent is the essential element in the formation of contracts, that a mistaken idea of one or both parties in regard to the meaning of an offer or acceptance will not prevent the formation of a contract. * * * It follows that the test of the true interpretation of an offer or acceptance is not what the party making it thought it meant or intended it to mean, but what a reasonable person in the position of the parties would have thought it meant.

"The sound view has been well expressed by L. Hand, J.: `A contract has, strictly speaking, nothing to do with the personal or individual, intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes upon them, he would still be held, unless there were some mutual mistake, or something else of the sort.'"

We have a good illustration of the application of the rule just stated in our own Oregon Reports. In *Page 124 Leonard v. Howard, 67 Or. 203, 135 P. 549, Mr. Chief Justice McBRIDE said:

"We cannot assent to the proposition that by reason of the mistake made by Howard there was no `meeting of the minds' upon a contract. The subject of the contract, the thing to be done, was the plumbing in the Goode Building. As a detail of this a certain number of toilets, lavatories, and sinks were sketched upon the plans submitted to the defendants. They bid upon the contract, but by inattention overlooked some of the details, and bid too low. The case is not different from what it would have been had they correctly counted the articles to be furnished, and by some mistake or oversight miscalculated the cost of them, and thereby been misled into making an unprofitable bid. Had a fraudulent plan been furnished defendants, or had they by any wrongful act or neglect of plaintiff been induced to make the bid, the case would have been different; but in our opinion the evidence shows that the low bid made by them was the result of a mistake, and this mistake the result of Howard's careless examination of the plans. Under such circumstances neither law nor equity will help them: * * *."

The plaintiff does not claim that the defendant in any manner misled her. She, of course, does not even intimate that the defendant practiced any deceit. The warehouse receipt and contract is brief in length, clear in its phraseology, and opposite the few lines which state the contract is printed in heavy black ink READ THIS CONTRACT. As sufficiently stated, the plaintiff swore that she experienced no difficulty in understanding the meaning of the paper's language.

Without further analysis, we express our conclusion that when the plaintiff sent her check to the defendant for the amount of the charge expressed in the *Page 125 warehouse receipt and contract she accepted that writing as the written expression of her contract with the defendant; in other words, the defendant had offered it to her as a contract and she accepted the offer.

The above ought to suffice as a disposition of every contention advanced by the plaintiff. We shall, however, take notice of another matter.

Reverting to Mr. Justice BRAND'S statement, it will be seen that he says: "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." Thus he concedes that the record shows "acceptance and retention without objection." The period was six months. We shall now compare the above statement of the rule governing acceptance with the one given by Professor Williston. Williston on Contracts, Rev. Ed., § 90A, says:

"The acceptance of a paper which purports to be a contract sufficiently indicates an assent to its terms whatever they may be, and it is immaterial that they are, in fact, unknown. This principle finds illustrations in several kinds of cases. * * * Indeed any written contract though signed by one party only binds the other if he accepts the writing."

From § 90B of the same treatise, we quote:

"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."

Restatement of the Law, Contracts, § 70, says:

"One who makes a written offer which is accepted, or who manifests acceptance of the terms of a writing which he should reasonably understand to be an offer or proposed contract, is bound by *Page 126 the contract, though ignorant of the terms of the writing or of its proper interpretation."

According to 12 Am. Jur., Contracts, § 61, p. 551:

"Parties may become bound by the terms of a contract even though they do not sign it, where their assent is otherwise indicated. * * * A written contract, not required to be in writing, is valid if one of the parties signs it and the other acquiesces therein. Acceptance of a contract by assenting to its terms, holding it, and acting upon it may be equivalent to a formal execution by one who did not sign it. Bills of sale, promissory notes, deeds and many other writings are signed by one of the contracting parties and delivered to another, who receives the same and orally or by conduct acquiesces therein."

From 13 C.J., Contracts, § 76, p. 277, we quote:

"A contract may be formed by accepting a paper containing terms. If an offer is made by delivering to another a paper containing the terms of a proposed contract, and the paper is accepted, the acceptor is bound by its terms; and this is true as a rule whether he reads the paper or not. * * * This question arises where a person accepts a railroad or steamship ticket, bill of lading, warehouse receipt, or other document containing conditions. He is bound by all the conditions, whether he reads them or not, if he knows that the document contains conditions. * * *"

We have already seen from the words of Professor Williston that this principle of law is applicable to bills of lading and warehouse receipts. Volume 67, C.J., Warehousemen and Safe Depositaries, § 98, p. 505, states the situation thus:

"A bailor's storage of goods and acceptance of a receipt containing a stipulation limiting liability for loss has been held sufficient to make such *Page 127 limitation binding upon him as a term of the contract of storage, although other authority holds that to secure the benefit of a contractual limitation the warehouseman invoking it must show that knowledge of the limitation or exception was affirmatively brought home to the bailor. Where the contract is complete prior to issuance of a receipt limiting liability to an agreed value, and the bailor's attention is not called to such limitation, it cannot be considered that the bailor consents to a change in the contract and he is not bound by the limitation clause in the receipt. Under the provision of the Uniform Warehouse Receipts Act permitting a warehouseman to insert terms and conditions in his receipt, provided they do not contravene his obligation to exercise reasonable care, it has been held that a warehouse receipt has the force and effect of a contract binding upon the bailor without affirmatively bringing to his attention limitations as to value, although other authority construing the same provision holds a limitation of value ineffective in the absence of affirmative notice thereof to the bailor."

It will be recalled that the plaintiff expressly admitted that she read the paper sent to her by the defendant (the warehouse receipt and contract). It will also be recalled that she answered "Certainly" when she was asked whether or not she understood the meaning of the limitation of liability clause. Thus every requirement made by the authorities is satisfied by the facts before us.

We are satisfied that the plaintiff's "acceptance and retention without objection" (the words are those of the majority opinion) of the warehouse receipt and contract rendered it the agreement of the parties.

It may be well before bringing this opinion to a close to take note of some authorities upon which *Page 128 Justices BRAND and BAILEY rely. The latter quotes from CarnahanManufacturing Company v. Beebe-Bowles Company, 80 Or. 124,156 P. 584, and seemingly believes that that decision justified the plaintiff in resorting to silence in lieu of actual rejection (if that really was her choice) when she received the warehouse receipt and contract. But in the Carnahan case the parties, at the time when the plaintiff in that case allegedly offered the defendant a contract, had a written contract, were proceeding with its performance, and the defendant did not contemplate any modification of their contract. Unlike the case now before us, the defendant did not send to the plaintiff a remittance showing in that way an acceptance of the offer of the new contract.

Surely no court will ever intentionally lay down a rule which will enable a party who receives a written offer of a contract, based upon minimum rates and minimum responsibility, to send the offeror a remittance for the amount exacted by the offer and later, after a loss has occurred, claim that he did not accept the offer and insist upon unlimited liability upon the part of the other contracting party. Such a situation would enable every insured to get the benefit of minimum rates and, after a loss has occurred, receive full indemnity. No such a fraud-inviting rule is stated in the Carnahan decision.

Both Justices BRAND and BAILEY cited Goldstein v. RobertDollar Co., 127 Or. 29, 270 P. 903. In that case the plaintiff claimed that he shipped his automobile with the defendant, the Robert Dollar Company. The latter claimed that the carrier was the Dollar Steamship Lines, another corporation. The plaintiff swore that he had had no dealings whatever with the Dollar *Page 129 Steamship Lines. The issue was with which of those two the plaintiff had contracted. The place of shipment was Boston, the destination Portland, Oregon. The plaintiff testified that all of his dealings had been with the defendant, that the latter's name was upon the office door where he transacted the business, that an employee of the defendant directed him to the place where he delivered his automobile, and that the defendant gave him a receipt for his car. He swore that nothing was ever said about a bill of lading. The defendant, in support of its claim that the Dollar Steamship Lines was the carrier, depended upon a bill of lading which that corporation had mailed to the plaintiff. The paper was not delivered to the plaintiff in Boston, nor contemporaneously with the transaction, but in Portland. The plaintiff had not asked for it. The automobile was returned to the plaintiff without production of the bill of lading. Obviously, the plaintiff, in order to assert that the defendant was the party with whom he had contracted, was not required to return to a third party — whom he claimed was a stranger to the transaction — a paper which it, unsolicited by him, had sent to him. Silence under those circumstances could not be interpreted as acquiescence. That is substantially what the Goldstein decision held. The governing principle of law in that case is foreign to our present facts.

Mr. Justice BRAND'S opinion relies much upon the check room cases. Most courts refuse to give effect to liability limitation clauses printed upon the back of a claim check handed to a customer of a check stand, unless his attention is called to the fact that he should read the reverse side of the identifying check. The reason is obvious — most patrons have no reason to *Page 130 suspect that a contract is printed upon the back of the check and that by accepting the stub they are adopting the contract. They regard the token as nothing more than a means of identifying their luggage when they call for it. Williston expresses the judicial attitude thus:

"This is most commonly put on the ground that the average person would not expect such a token to constitute an offer of a special contract, and, therefore, there must be evidence that the depositor read the provision on the token or that it was expressly called to his attention at time of deposit." Williston on Contracts, Rev. Ed., § 90B.

The excerpts quoted from check room decisions in the majority opinion deal with the difficulties to which I have just adverted. Those difficulties are not present when a bailor (like the plaintiff), after negotiation with a warehouseman, ships his goods to the warehouse and upon delivery of the warehouse receipt, reads it. It is our belief that the check room cases have no application to the problem before us.

We are convinced that when the plaintiff sent her check to the defendant for the amount expressed in the warehouse receipt and contract she accepted the contract for which the $11.10 was the consideration. Likewise, we are convinced that when she accepted the warehouse receipt and contract sent to her by the defendant as the offer of a contract, she thereby bound herself to the terms of that instrument.

For the foregoing reasons, we dissent.

RAND and LUSK, JJ., concur.