Two questions are submitted to us on this case: 1st. Whether a receipt by an express company requires a stamp ; and, 2d. Whether such a receipt, which limits the liability of the express company, is a contract between the parties, protecting the company from liability, except as stated therein, without any proof of knowledge on the part of the holder, of the contents thereof.
First. The objection to the admission of the receipt without a stamp has been examined by the general term of this district, in the case of DeBarre v. The Hope Express Co., (48 Barb. 511.) It was there held that the stamp was not required, and that the exception in the act of 1865, covered such a receipt.
Second. The principal question in the case is as to the extent of the defendant’s liability, and whether an express company can by a notice, or by an exception in a receipt, which is not shown to have come to the knowledge of the shipper or holder, exempt themselves from liability in whole or in part, if the article is lost through the negligence of the express company.
That the defendant’s company is to be regarded as a common carrier, and their responsibility for the safe delivery of property intrusted to them is the same, has been settled by various decisions. (Russell v. Livingston, 19 Barb. 346. Sherman v. Wells, 28 id. 403.) And the same has been distinctly held by the Court of Appeals, in Sweet v. Barney, (23 N. Y. Rep. 335.)
It is equally well settled that a common carrier may by express contract between himself and the party contract*78ing with him, agree to a limitation of his liability. (Parsons v. Monteath, 13 Barb. 353. Moore v. Evans, 14 id. 524. Dorr v. N. J. Steam Navigation Co., 11 N. Y. Rep. 485.) In the latter ease it is said : “ That a carrier may by express contract restrict his common law liability is now, I think, a well established rule of law.” (Lee v. Marsh, 43 Barb. 102. York Co. v. Central R. R. Co., 3 Wallace U. S. Rep. 111.)
The decisions in this state also have settled that a common carrier cannot relieve himself from liability either in whole or in part by a mere notice indorsed upon the ticket. • or receipt. (Hollister v. Newton, 19 Wend. 234,) in which it was held that the carrier’s notice, even if brought home to his employer, could not he sufficient to infer an express contract. The argument there used is that the carrier is hound to receive and carry goods delivered to him, for whióh duty he receives a compensation. He has no right to prescribe other terms, and a notice, at most, is only a proposal for a special contract, which requires the assent of the other party.
So in Bissell v. N. Y. Central R. R. Co., (25 N. Y. Rep. 442,) Selden, J. says: “ The position appears to be settled, that the companies cannot limit their responsibility by any notice, though expressly brought to the knowledge of those whose persons or whose property they carry, but they may secure such limitation by express contract with those persons.”
These cases all rest on the principle that the carrier receives a consideration for the carriage, and he is bound to carry the goods accordingly; that he cannot by a mere notice relieve himself from that liability; that even proof of its being brought to the knowledge of the owner would not be sufficient to relieve the carrier’s liability, but that an express contract must be proven.
There is another class of cases where the carriage of passengers on free tickets, without compensation, does not *79involve the application of this strict rule; but that rests on a different principle, and is not applicable to the present case.
[New York General Term, January 6, 1868.Geo. G. Barnard, Sutherland and Ingraham, Justices,]
Upon the trial of this case, the justice not only refused to submit to the jury the question whether there was any evidence of a contract between the parties, but expressly held that the contents of the receipt were a binding contract between the parties, and limited the defendant’s liability to $50 and interest, and directed a verdict for the plaintiff for that amount.
In this the learned justice erred, and a new- trial must be ordered.
Verdict set aside and a new trial ordered; costs to abide the event.