I dissent. The learned trial justice instructed the jury that defendant was absolutely liable to the plaintiff for the fair and reasonable value of the goods delivered to it. The only question submitted to them was that of value. Defendant contends that the extent of its liability is the sum of $50, with interest from the date of its failure to deliver the goods in question to the person to whom they were sent. In response to defendant’s request to direct a verdict for plaintiff in that sum, the trial justice stated that he would do so “except for the provision of this statute.” The statute referred to is section 38 of the public service commission law (Laws 1907, c. 429, § 38). In holding this statute applicable I think error was made. So far as this statute attempts to prevent an absolute exemption from liability, or to fix the extent of such liability under certain conditions to the full value of the property not exceeding $150, I think that it has no application. Baum v. Long Island Railroad Co., 58 Misc. Rep. 34, 108 N. Y. Supp. 1113; Morgan v. Woolverton, 136 App. Div. 351, 120 N. Y. Supp. 1008. At common law a common carrier may contract to limit its liability. Barnes v. Long Island Railroad Co., 115 App. Div. 44, 100 N. Y. Supp. 593; affirmed 191 N. Y. 528, 84 N. E. 1108; Greenwald v. Barrett, 199 N. Y. 170, 92 N. E. 218. I think that it was a question of fact for the jury whether the plaintiff did not assent to such a contract. The court was requested to charge and' did charge:
“That both Max Shwartz and Cornelius Alexander were agents of plaintiff in this transaction, and the knowledge of either, and both, must be imputed to her, and the acts of either and both bind her.”
This, therefore, becomes the law of this case. The book in which the receipt for the goods was written contained a.statement that the property was to be forwarded “subject to the terms and conditions of the company’s regular form of receipt printed on inside front cover of this' book.” The testimony clearly establishes the fact that when the book was delivered to Max Shwartz, plaintiff’s husband, some *929time before the date in question, it had a cover upon it, and upon this cover were these words:
“Tfie liability of this company is limited to $50, unless the just and true value is stated in this receipt, and an extra charge is paid or agreed to be paid therefor, based upon such higher value.”
There is no claim that the actual value of the goods was stated at the time delivery was made to the defendant, and the evidence is undisputed that the rate of transportation charged was less than it would have been if the full value had been stated. At the time when the goods were delivered to defendant, the covers of the book had been separated from the leaves thereof. It is not necessary that the receipt and the clause limiting liability should be actually physically attached to each other at the time that the contract of carriage is made to make them part of one and the same agreement. In the case of building contracts, it frequently occurs that the contract refers to the specifications as “being hereunto annexed.” It has been repeatedly held that it is sufficient to incorporate the terms and provisions of the specifications into the contract, making them a part thereof if they are actually existing and delivered simultaneously therewith, so that the terms thereof may be said to be in the minds of the contracting parties. Although at the time that this receipt was signed the covers of the book containing the contract of limitation were detached therefrom, there is no evidénce that these were not still in the possession of Max Shwartz, plaintiff’s agent. The parties, by the. form of the receipt, manifestly intended to refer to some other contract which was in writing, and it appears that this written contract had been in the possession of Max Shwartz, if it was not at that very time, and it must be presumed that he was entirely familiar with the contents thereof, considering the long period of time during which it had been in his possession and the frequency with which he had made use of the book of receipts for shipping purposes. It was at least a question of fact for the jury to say whether Max Shwartz did not know of and assent to the contract limiting liability, and under the rule of law established in this case, if he had such knowledge it was imputable to the plaintiff. I think, therefore, that the judgment and order denying the motion for a new trial should be reversed and a new trial granted, costs to abide the event.