The jury returned a verdict in which it found that the defendant was negligent in failing to provide a reasonably safe place in which to store the trunk of silver left with it by the plaintiff, and that the value of the silver was $4,184.50. Those two matters were settled by the verdict and are not in question on this rehearing. The principal controversy now before us is whether the court can say as a matter of law that the warehouse receipt sent by the defendant to the plaintiff and received by her became the contract between the parties or whether that was a fact for the jury to determine. *Page 103
Mrs. Voyt lived at Roseburg and intended to move therefrom about the middle of August 1937. The warehouse in that city was not equipped with a vault for the storage of valuable personal property. The plaintiff therefore consulted Dunham Transfer Company, of Roseburg, about storing her furniture and valuables in some other city. At her instance that company wrote to the defendant on July 20, 1937, requesting a quotation of storage rates and adding this explanation:
". . . This Mrs. Voyt will have a steamer trunk of expensive silver which she wants placed in a vault besides between 5000 to 6000 pounds of furniture roughly estimated."
To that letter the defendant six days later replied, saying, among other things, the following:
"The basic rate is 3/4 of a cent per cubic foot per month, . . .
"We do not have a separate vault for silver, but we can assure both you and Mrs. Voyt that her valuables will be safe while entrusted to our care."
The transfer company communicated to the plaintiff the contents of the defendant's letter, and she thereupon instructed that company to have the defendant pick up her goods at Roseburg, transport them to Portland and there store them in its warehouse. For the transportation she paid the defendant some $155.
Upon the defendant's receiving the plaintiff's property for storage in its warehouse a contract came into being between the plaintiff and the defendant, whereby the warehouse company agreed to exercise reasonable care in the safekeeping of the goods entrusted to it: § 60-221, O.C.L.A.; 27 R.C.L. 987, § 45. And the plaintiff agreed to pay for such services "3/4 *Page 104 of a cent per cubic foot per month" of space occupied by her property, the rate specified in the defendant's letter to the transfer company.
It seems to be conceded that, had the plaintiff's silver been stolen prior to the time she received the warehouse receipt from the defendant, the plaintiff would have been entitled to recover the reasonable value of the property stolen. It is argued, however, that inasmuch as the "warehouse receipt and contract" was mailed by the defendant to the plaintiff and received by her and she read the same and thereafter sent to the defendant a check covering six months' storage at the monthly rate specified in the receipt, such instrument contained all the terms and conditions of the contract between the parties, and that the limit of liability therein stated, ten dollars per hundred pounds, or not to exceed a total of thirty dollars, is all that the plaintiff can recover.
In this connection we should bear in mind that according to the defendant's testimony the $11.10 mentioned in its receipt as the monthly rate for storing the plaintiff's effects was computed on the basis of three-fourths of a cent per cubic foot of space occupied, with the exception of two rugs and three chairs, for each of which there was a charge of fifty cents per month. In other words, 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 and the same rate that the plaintiff, either expressly or impliedly, agreed to pay at the time her property was turned over to the defendant. The mere fact, therefore, that the plaintiff paid the amount of storage charges specified in the receipt does not *Page 105 necessarily constitute an acceptance by her of the terms of that instrument.
In submitting the warehouse receipt in duplicate to the plaintiff, the defendant must have intended that she sign either the original or the copy and return it to the defendant before such receipt would become the contract between the parties, for at the bottom of the receipt is this printed note: "This warehouse receipt and contract has been examined and is hereby accepted as correct and satisfactory." Below the printing there is a line for the signature of the owner of the property. The plaintiff did not, however, sign the receipt or return a copy of it to the defendant.
This court, in Carnahan Manufacturing Company v. Beebe-BowlesCompany, 80 Or. 124, 128, 156 P. 584, stated:
"It was competent for the parties to modify their original contract which would amount to making a new agreement; but this later stipulation, like all others, must be one in which the minds of the parties meet on identically the same proposition. The record shows that the plaintiff proposed certain changes in the contract, but it does not show that the defendant accepted the offer. It was therefore error for the court to say to the jury:
"`That a modification of a contract submitted and taken under consideration must be answered. If it is not answered, it is agreed to.'
"No one receiving an overture to change an agreement to which he is a party is obliged to answer the same. His silence can not be construed as an acceptance if nothing else is shown."
See also, in this connection, Goldstein v. The Robert DollarCompany, 127 Or. 29, 32, 270 P. 903, wherein the court said: *Page 106
"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."
In its letter to the transfer company, quoting its storage rate per cubic foot per month, the defendant took particular pains to assure the transfer company and Mrs. Voyt "that her valuables will be safe while entrusted to" its care. Nowhere in that letter did the defendant state that its liability in regard to the silver would be limited to ten dollars per hundred pounds of silver, or that a higher rate would be charged in the event that the plaintiff declared a higher value of the silver than ten dollars per hundred pounds. It cannot be said, moreover, that Mrs. Voyt chose the "lower" rate because of her financial condition, in view of the fact that no other rate was quoted to her and the further fact that she was willing to expend over one hundred fifty dollars to transfer her property to Portland for what she believed to be safer storage than that available in Roseburg.
Mr. Justice BRAND, in his opinion on rehearing, has referred to a number of facts, not necessary here to be repeated, which would indicate that Mrs. Voyt did not know that the monthly rate specified in the warehouse receipt was based on the limited liability of the warehouseman therein stated. This case differs materially from those in which the limitation of liability is stated in warehouse receipts delivered at the time the goods are taken for storage. In those instances the only question is: What was the original contract between the parties? *Page 107
The warehouse receipt here before us contains this provision: "The responsibility of the above company for any piece or package and its contents 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 an additional charge will be made for higher valuation." It is asserted by the defendant that the plaintiff's recovery in this case is limited to ten dollars per hundred pounds of silver lost, for the reason that she did not make known at the time of storage its higher valuation, and for the further reason that a greater value was not "receipted for in the schedule."
Passing for the present the question of whether Mrs. Voyt did make known the value of the silver as greater than ten dollars per hundred pounds at or before the time of delivering her property to the defendant, and assuming that she did not, as contended by the defendant, it would have been impossible for her, in point of time, actually to comply with the terms of the receipt in regard to avoiding the limitation of the defendant's liability, inasmuch as her property had been in storage two weeks when the receipt was delivered to her by mail.
The warehouse receipt, it is apparent on reading it, was intended to be submitted to the owner of goods to be stored at or before the time of taking the goods into storage, in order that such owner might, upon learning the limitation of liability, make known at the proper time his wishes in regard to placing a higher valuation on his property. If the warehouse receipt sent to the plaintiff was intended to serve as anything more than a list of or receipt for goods delivered to the defendant by the plaintiff, it constituted an offer by the defendant to make a new contract whereby, among other things, *Page 108 the defendant's liability would be limited as stated in the receipt. There was no obligation on the part of the plaintiff to accept that offer, and the court cannot say as a matter of law that she did accept it.
The original opinion of the majority of the court points explicitly to the evidence showing that the defendant did know that the trunk here in question contained silver worth "thousands of dollars". Because of such knowledge and because of the defendant's specific assurance to Mrs. Voyt, when soliciting her business, that her valuables would be safe while entrusted to it, the defendant should have notified Mrs. Voyt, in submitting the warehouse receipt to her, that the monthly charge therein stated was based on the defendant's limited liability, if such was the fact, so that she could have obtained storage for her silver that would afford adequate protection, by paying the defendant's charge for such storage.
In my opinion, whether Mrs. Voyt did agree to the terms and conditions contained in the warehouse receipt and contract was a question of fact for the jury to determine: Goldstein v. TheRobert Dollar Company, supra. I cannot concur in the conclusion that the court may decide as a matter of law what constituted the contract between the plaintiff and the defendant at the time the silver was stolen.
The defendant did not, however, request that the court submit that question to the jury. In fact, it contended during the trial in the circuit court, and now argues, that the trial judge should have instructed the jury as a matter of law that the plaintiff's recovery was limited to the amount of the defendant's liability as stated in the warehouse receipt, which it claims to embody the contract between the parties. In refusing *Page 109 to grant the defendant's request for such an instruction, the trial court did not, I believe, commit error. In view of the record, this court would not be justified in reversing the judgment appealed from and remanding the case for a new trial: § 10-810, O.C.L.A.
For the reasons herein stated I concur in the result of the opinion of Mr. Justice BRAND.
BELT, J., concurs in the foregoing opinion.