I am unable to concur in the conclusion reached by my learned colleagues herein. The evidence in my judgment fails to show the making of an express contract between plaintiff and defendant as to a limitation of value, but merely proves the giving and taking of a receipt coincident with the delivery of the trunk by plaintiff’s agent, her daughter, to defendant’s agent, no opportunity being afforded plaintiff’s agent to acquaint herself with the contents .of the receipt given for the trunk.
In Grossman v. Dodd, 63 Hun, 324; affd., 137 N. Y. 599, it was held that the shipper was not bound by a similar provision in a receipt given by defendant’s agent to plaintiff upon an open pier where there was full opportunity given to examine the contents of the receipt, the court holding that the evidence was insufficient to establish, either actually or presumptively, notice of the contents of the receipt and assent thereto.
In Madan v. Sherard, 73 N. Y. 329, it was held that *598a traveler having delivered his baggage to a local express company, and receiving a paper, which, from the circumstances of the transaction, he had a right to regard simply as a receipt or voucher, to enable him to follow and identify his property, and no notice was given to him that it embodied the terms of a special contract, or was intended to subserve any other purpose than as a voucher, he was not, as matter of law, bound by its terms.
I can see no distinction of principle between the case at bar and the two cases cited. It cannot be seriously contended that our appellate court in deciding the cases above cited intended, as intimated in the majority opinion herein, to create a special privileged class of persons known as travelers, who would be exempt from the provisions of a special contract into which they had entered, but rather to lay down the rule that, whether travelers or not, whether actually en route, or at the end of a journey, or on the point of starting upon a journey, or even not engaged in traveling, a person delivering personal property to. another for shipment, and receiving a receipt or voucher therefor under circumstances which preclude presumption of knowledge of the contents of the receipt or assent thereto, is not bound by a special limitation of value clause inserted in the receipt by the carrier, without notice to the shipper.
In Greenwald v. Barrett, 199 N. Y. 170, the Court of Appeals, in the learned opinion written by Justice Bartlett, emphasizes very specifically the fact that the evidence therein showed that plaintiffs had had similar transactions with defendant during a course of years and had in their custody a book of blank receipts; that they made the entries in the blanks themselves and prepared the receipt for signature by the express com*599pany’s driver when he called to take the goods, and, therefore, 11 must he charged with a knowledge of its contents in the absence of any proof whatever that they were not acquainted therewith. ’ ’
In Madan v. Sherard, supra, the court also held that the question whether, in a particular case, the party receiving a receipt accepted it with notice of its contents, or with notice that it contained the terms of a special contract, so as to require him to acquaint himself with its contents, or merely delivered a trunk, taking a receipt or voucher therefor, is one of evidence to be determined by the jury. In the case at bar there is no evidence making plaintiff chargeable with implied knowledge, but positive evidence that no opportunity was given to gain such knowledge. On this uncontradicted evidence the trial judge, acting as a jury, properly determined this question of fact in favor of plaintiff.
The judgment should be affirmed, with costs.
Judgment modified and, as só modified, affirmed, without costs.