JOHN ARADALOU vs. NEW YORK, NEW HAVEN, AND HARTFORD RAILROAD COMPANY.

RUGG, C. J. This is an action to recover the value of household goods shipped in interstate commerce by virtue of a contract with the defendant over its line from New Haven, in the State of Connecticut, to New Bedford in this Commonwealth, and lost in transit. The actual value of the goods is conceded to be $75. The plaintiff is entitled to recover that sum unless prevented by

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an agreement with the defendant or by the terms of the interstate commerce act. The defendant contends that its liability is limited to $10 per hundred weight by virtue of an agreement contained in the so called "release clause," which appears on the bill of lading, marked "Exhibit A," on the shipping order, marked "Exhibit C," and on the "release" attached to the statement of agreed facts marked "Exhibit B," three papers issued at the time of the shipment.

A contract limiting the liability of a carrier for the goods in case of loss, made as a part of an agreement for the rate charged, is valid under the recent acts of Congress regulating rates. Such a contract is in effect an agreement respecting what the property is as to value. That was the rule established by this court. Bernard v. Adams Express Co. 205 Mass. 254. It is the settled doctrine of the United States Supreme Court, whose decisions in this particular are binding upon other courts, that, "where alternate rates fairly based upon valuation are offered, a railroad may limit its liability by special contract." Cincinnati, New Orleans & Texas Pacific Railway v. Rankin, 241 U. S. 319, 327.

The release clause on each of the three papers was signed in the name of the plaintiff by his agent. The release clause was affixed to each of these papers by a red ink stamp furnished and used by the defendant, which with its blanks was as follows: "For the purpose of enabling the carrier to apply the proper published rate, as explained in its classification and tariffs, I hereby declare that the value of the property herein described does not exceed______dollars per______pounds, and that in case of loss or damage thereto, I will not assert claim against the carrier on a higher basis of value than______dollars for each______pounds or fraction thereof in weight of the property so lost or damaged." This controversy arises because of the character of the writing or figures inserted in the blank spaces in these release clauses.

Regarding the way in which these blanks touching the value of the goods were filled, the Superior Court judge found that on Exhibit A, which was the bill of lading, the agent of the defendant "writing the paper intended to write 10.00 before the word 'dollars.' He made no decimal point, and the limitation in each case on Exhibit A is clearly 1000 dollars. I am satisfied that on

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Exhibit C he intended to write the word 'ten' before the word 'dollars,' but in each case he made an indecipherable scrawl which might as well be taken to be the Arabic numeral 1 followed by two ciphers looped together as the written word 'ten'."

The three original instruments marked Exhibits "A," "B," and "C," pursuant to a clause in the exceptions, were presented to this court at the argument. The defendant asks us to decide that the judge was wrong in his finding of fact by inspection of these original documents. That cannot be done. The full court sitting in banc has no jurisdiction to determine facts in actions at law. It can only decide questions of law. Electric Welding Co. Ltd. v. Prince, 200 Mass. 386. Marvel v. Cobb, 204 Mass. 117. Whether markings upon paper are legible or undecipherable is a question of fact and not of law. The only question of law that can be presented in a case like the present where the original instrument is made a part of the exceptions is whether there was any evidence to support the finding. Bailey v. Marden, 193 Mass. 277, 279. It is clear from an inspection of the original paper that the finding as to "an indecipherable scrawl" was quite justified. No rulings were asked as to the effect of Exhibit B. The judge did not make any finding respecting it, nor decide whether it was legible or not. Under these circumstances, by itself it cannot affect the determination of the case presented on the record. It is not necessary to consider whether, even if its release clause was different from that on the bill of lading, it could control or affect the terms of the bill of lading, which is required to be issued by the carrier by the Hepburn act of U. S. St. June 29, 1906, c. 3591, (34 U. S. Sts. at Large, 593,) in § 7, the Carmack amendment, Atchison, Topeka & Santa Fe Railway v. Harold, 241 U. S. 371, 378, and which, according to well established commercial usage, constitutes the contract between a shipper and carrier. See Southern Railway v. Prescott, 240 U. S. 632. The case must be decided on the footing that these findings of fact by the trial judge were right. It may not be inappropriate to add that there appears to be no reason to doubt their correctness.

The contract as to restriction of the defendant's liability in case of loss between the parties, in the bill of lading, limited the value of the goods to an amount not exceeding "1000 dollars." That is the finding of the judge. If that be taken as the whole

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contract of the parties, the plaintiff is not precluded from recovery of the full value of his goods, which is much less than $1,000. The blanks in the release clause on the shipping order, Exhibit C, are found by the judge to be an "indecipherable scrawl," which might be taken for the Arabic figures "100" as well as for the word "ten." An "indecipherable scrawl" does not constitute a contract. When the parties undertake to put their agreement in writing and express its crucial terms by characters or symbols so illegible that the tribunal established to try the facts cannot determine the signification of that which is on the paper, then no contract in writing has been made. That which was written upon the shipping order, Exhibit C, in the release clause, being of no effect, cannot modify the agreement of the parties expressed on the bill of lading. If the two papers be construed together, the one of plain words controls the rights of the parties unaffected by the other meaningless paper.

The judge ruled rightly that what the defendant's agent intended to do when he wrote in the blank spaces of the limitation clause on the shipping order was immaterial. The intent of one party in reducing to writing a contract, which subsequently is signed by both parties, not communicated to the other party, is not admissible in his own favor in an action where the meaning and effect of the contract are in controversy between the parties. Taft v. Dickinson, 6 Allen 553. Tallant v. Stedman, 176 Mass. 460.

So far as the case stands upon the paper agreement of the parties set forth in the bill of lading, it is manifest that there is nothing to prevent the plaintiff from recovering the full value of the goods. The representation of maximum value which he made at the time of shipment was far in excess of the amount which he now demands. In this connection the circumstance that the defendant commonly used the stamp only when the value declared by the shipper was $10 per one hundred weight is of no consequence. There is nothing to indicate that the shipper knew this custom, even if otherwise it could affect what in fact was written.

The defendant contends that it cannot be held liable for more than $10 per hundred pounds, because the rate charged and prepaid was on that basis. In this connection the following agreed facts are pertinent: "The defendant had in effect, at the time the

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shipment moved, certain tariffs filed and posted, as required by law, providing for two different rates on shipments of household goods: The higher rate was to be used when the goods were not released; the lower rate was to be used when the goods were shipped at the released valuation, which, in accordance with the tariff, was ten ($10) dollars per hundred (100) pounds, in case of loss or damage. The defendant had no released valuation for household goods: except that of ten ($10) dollars per one hundred (100) pounds. . . . In the present case, the freight charges which were assessed were at the lower rate, or the rate provided for goods which were released." These freight charges were prepaid by the shipper. "Released" and "released valuation" as used in these agreed facts we understand to mean a statement of the value of the goods shipped made in a form similar to that embodied in the "release clause" which has already been set forth in full. The "release clause" quoted above was stamped upon the face of the bill of lading by a red ink stamp and, after being filled in as before stated, was signed in the name of the plaintiff. One condition of the bill of lading was that "The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper or has been agreed upon or is determined by the classification or tariffs upon which the rate is based, in any of which events such lower value shall be the maximum amount to govern such computation whether or not such loss or damage occurs from negligence." Since the bill of lading relates to interstate commerce, its proper construction is a federal question. The acts of Congress and decisions of the Supreme Court of the United States are controlling and must be followed. Georgia, Florida & Alabama Railway v. Blish Milling Co. 241 U. S. 190.

Obviously no lower value was represented in writing by the shipper. The only representation by him as to value was that the goods did not exceed $1,000 in value, a maximum limit much higher than the real value. But so far as the shipper is concerned he represented a maximum limit of value for the express "purpose of enabling the carrier to apply the proper published rate,

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as explained in its classification and tariffs" to the proposed shipment. That is the purpose stated in the clause signed by him on the bill of lading. Being a part of a contract in writing, it binds the parties. It does not appear that the shipper had anything to say further about the rate to be charged. Apparently he paid the rate which was asked. If too low a rate was charged, it did not arise from any misstatement, silence or conduct by him. If the carrier by mistake charged too low a rate there is nothing to prevent it from recovering of the shipper the published rate. New York, New Haven, & Hartford Railroad v. York & Whitney Co. 215 Mass. 36. Louisville & Nashville Railroad v. Maxwell, 237 U. S. 94. Dayton Coal & Iron Co. Ltd. v. Cincinnati, New Orleans & Texas Pacific Railway, 239 U. S. 446.

But when the shipper makes an express representation of value for the purpose of enabling the carrier to fix the rate, and a rate is fixed by the carrier, which by mistake is based on the theory that a much lower valuation was fixed than that in fact contained in the written statement of value signed by the shipper, the rights of the shipper cannot be affected within the limits established by his declaration of value by the rate which the carrier exacts. The contention of the defendant is in substance that, even though a shipper has declared a high value for the purpose of enabling the carrier to fix a rate, he nevertheless is bound to a much lower limitation of value simply because of the rate actually prepaid; that it is the rate charged and not the value declared which fixes the carrier's liability. That argument is an inversion of sound reason. The declaration of value fixes both the legal rate and the amount recoverable; the rate actually charged does not control a written declaration of value. It was said in Kansas City Southern Railway v. Carl, 227 U. S. 639, by Mr. Justice Lurton at page 652, "The valuation the shipper declares determines the legal rate where there are two rates based upon valuation. He must take notice of the rate applicable, and actual want of knowledge is no excuse. . . . When there are two published rates, based upon difference in value, the legal rate automatically attaches itself to the declared or agreed value. Neither the intentional nor accidental misstatement of the applicable published rate will bind the carrier or shipper. The lawful rate is that which the carrier must exact and that which the shipper must pay."

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Adams Express Co. v. Croninger, 226 U. S. 491. George N. Pierce Co. v. Wells, Fargo & Co. 236 U. S. 278, 283. These words of Mr. Justice Lurton were used in deciding a case where a shipper was endeavoring to escape the effect of his statement of a low valuation. But they are equally applicable to a carrier which is trying to evade the effect of a contractual assertion of high value by the shipper. Doubtless all parties are bound by the schedules of rates fixed according to law and cannot vary or affect them by oral or written contracts. Atchison, Topeka & Santa Fe Railway v. Robinson, 233 U. S. 173. But that does not mean that, when a shipper declares one value of his goods, on which the higher of two rates ought to be charged, that declaration can be made naught because the carrier charges him the lower rate, especially when, as already has been pointed out, the carrier can collect the higher rate by subsequent action at law, notwithstanding the initial collection of the lower rate. The rule established in Cincinnati, New Orleans & Texas Pacific Railway v. Rankin, 241 U. S. 319, 327, to the effect that "The essential choice of rates [by the shipper] must be made to appear before a carrier can successfully claim the benefit of such a limitation and relief from full liability," is applicable to the case at bar. Certainly there is disclosed on this record nothing to indicate a voluntary, intentional or intelligent choice by the shipper of the lower and limited liability rate.

The clause in the bill of lading limiting liability to the lower value because "determined by the classification or tariffs upon which the rate is based" is not applicable to a case where a value actually is represented in writing by the shipper and the rate lower than that permitted or required by the stated value is nevertheless charged by the carrier without collusion or actual knowledge of the classification or rate by the shipper so far as appears. There is hardly a contractual meeting of minds under such circumstances. We are not aware of any provision in the acts of Congress or binding decision which compels us to hold under the circumstances here disclosed that a limitation of his right of recovery to an amount below the true value of his goods is imposed on the shipper. Boston & Maine Railroad v. Hooker, 233 U. S. 97, seems to us to fall far short of requiring such a result. It is inequitable to permit the carrier by charging the lower rate to prevent the shipper from relying upon his express declaration of value simply by referring

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to a published schedule where two alternative rates are stated, the higher one of which ought to have been charged if reliance had been placed on the declared statement of value made by the shipper. Such an interpretation of the law in effect would permit the railroad to elect after the event the course most to its interests, by collecting the balance of the higher rate in case of a safe delivery, and by limiting its liability to the lower value fixed by the rate actually exacted in case of loss.

It is unnecessary to consider what would have been the rights and liabilities of the parties if no declaration of value had been made by the shipper. See Boston & Maine Railroad v. Hooker, 233 U. S. 97.

The argument of the defendant proceeds in large part upon the theory that the statement of value of the goods was a mistake and was intended to be "10.00 dollars" instead of "1000 dollars." But the judge made no finding to that effect. On the contrary, he found that "There was no talk about the release clause." He ruled rightly, in view of that finding, that both parties are bound by the two writings, Exhibits A and C. Johnson v. New York, New Haven, & Hartford Railroad, 217 Mass. 203. Secoulsky v. Oceanic Steam Navigation Co. 223 Mass. 465.

Moreover, if there was a mutual mistake of fact in the phrasing of the bill of lading, relief might have been granted to the defendant in equity on a bill to reform the written instruments. Dzuris v. Pierce, 216 Mass. 132, 135. Hayes v. Penn Mutual Life Ins. Co. 222 Mass. 382, 385. But such relief does not appear to have been sought or granted. The rights of the parties in the present action depend upon the bill of lading as written.

Exceptions overruled.