[1874-80] All ER Rep 166
Court of Appeal
Parker had deposited his bag in the cloakroom at the defendant's railway station. He paid the clerk 2d and was given a ticket which on the face of it said 'See back.' On the other side were several clauses one of which said 'The company will not be responsible for any package exceeding the value of £10'. On returning to the cloakroom Parker presented his ticket to the clerk but the bag could not be found. Parker claimed £24 10s as the value of his bag. The company pleaded that Parker had accepted the goods on the condition that they would not be responsible for the value if it exceeded £10. At the trial Pollock B asked the jury 1. Did Parker read, or was he aware of, the special condition upon which the articles were deposited? 2. Was he, in the circumstances, under any obligation, in the exercise of reasonable and proper caution, to read or make himself aware of the condition? The jury answered both questions in the negative and judgment was given for Parker.
On appeal the issue before the court was whether the clause on the back of the ticket had been incorporated into the contract between Parker and the railway company.
Mellish LJ
... The question then is, whether the plaintiff was bound by the conditions contained in the ticket? ... Now if in the course of making a contract one party delivers to another a paper containing writing, and the party receiving the paper knows that the paper contains conditions which the party delivering it intends to constitute the contract, I have no doubt that the party receiving the paper does, by receiving and keeping it, assent to the conditions contained in it, although he does not read them, and does not know what they are, and therefore in my opinion, the case of Harris v Great Western Ry Co was rightly decided, because in that case the plaintiff admitted, on cross-examination, that he believed there were, some conditions on the ticket. On the other hand, the case of Henderson v Stevenson is a conclusive authority that if the person receiving the ticket does not know that there is any writing upon the back of the ticket, he is not bound by a condition printed on the back.
The facts in the case before us differs from those in both Henderson v Stevenson and Harris v Great Western Ry Co, because in [the case which has] been argued before us, though the plaintiff admitted that [he] knew there was writing on the back of the ticket, [he] swore not only that [he] did not read it, but that [he] did not know or believe that the writing contained conditions, and we are to consider whether, under those circumstances, we can lay down as a matter of law either that the plaintiff is bound or that he is not bound by the conditions contained in the ticket, or whether his being bound depends on some question of fact to be determined by the jury, and if so, whether the right question was left to the jury in the present case.
Now I am of opinion that we cannot lay down, as a matter of law, either that the plaintiff was bound, or that he was not bound, by the conditions printed on the ticket, from the mere fact that he knew there was writing on the ticket, but did not know that the writing contained conditions. I think there may be cases in which a paper containing writing is delivered by one party to another in the course of a business transaction, where it would be quite reasonable that the party receiving it should assume that the writing contained in it no condition, and should put it in his pocket unread; as for instance, if a person driving through a turnpike gate received a ticket upon paying the toll, he might reasonably assume that the object of the ticket was that by producing it he might be free from paying toll at some other turnpike gate, and might put it in his pocket unread. On the other hand, if a person who ships goods to be carried on a voyage by sea receives a bill of lading signed by the master he would plainly be bound by it, although in an action afterwards against the shipowner for the loss of the goods he might swear that he had never read the bill of lading, and that he did not know that it contained the terms of the contract of carriage, and that the shipowner was protected by the exceptions contained in it. Now the reason why the person receiving the bill of lading would be bound seems to me to be because, in the great majority of cases, persons shipping goods do know that the bill of lading contains the terms of the contract of carriage, and the shipbroker or the master delivering the bill of lading is entitled to assume that the person shipping goods has that knowledge, although it is quite possible to suppose that a person who is neither a man of business nor a lawyer, might on some particular occasion ship goods without the least knowledge of what a bill of lading was; but in my opinion, such a person must bear the consequences of his own exceptional ignorance, it being plainly impossible that business could be carried on, if every person who delivers a bill of lading had to stop to explain what a bill of lading was. Now the question we have to consider is whether the railway company were entitled to assume that the person depositing luggage, and receiving a ticket in such a way that he could see that some writing was printed on it, were entitled to assume that the person receiving it would understand that the writing contained the conditions of contract, and this seems to me to depend upon whether people in general would, in fact and naturally, draw that inference. The railway company, as it seems to me, must be entitled to make some assumptions respecting the person who deposits luggage with them. I think they are entitled to assume that he can read, and that he understands the English language, and that he pays such attention to what he is about as may be reasonably expected from a person in such a transaction as that of depositing luggage in a cloakroom. The railway company must, however, take mankind as they find them, and if what they do is sufficient to inform people in general that the ticket contains conditions, I think that a particular plaintiff ought not to be in a better position than other persons on account of his exceptional ignorance or stupidity or carelessness; but if what the railway company do is not sufficient to convey to the minds of people in general that the ticket contains conditions, then they have received goods on deposit without obtaining the consent of the persons depositing them to the conditions limiting their liability.
I am of opinion, therefore, that the proper direction to leave to the jury in these cases is, that if the person receiving the ticket did not see or know that there was any writing on the ticket, he is not bound by the conditions; that if he knew there was writing, and knew or believed that the writing contained conditions, that then he is bound by the conditions, that if he knew there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he would be bound, if the delivering of the ticket to him in such a manner that he could see there was writing upon it, was, in the opinion of the jury, reasonable notice that the writing contained conditions. I have lastly to consider whether the direction of the learned Judge, namely, was the plaintiff, under the circumstances, under any obligation, in the exercise of reasonable and proper caution to read or to make himself aware of the conditions, correct?
I think that this direction was not strictly accurate, and was calculated to mislead the jury. The plaintiff was certainly under no obligation to read the ticket, but was entitled to leave it unread if he pleased, and the question does not appear to me to direct the attention of the jury to the real question, namely, whether the railway company did what was reasonably sufficient to give the plaintiff notice of the condition. On the whole, I am of opinion that there ought to be a new trial.
[Baggalley LJ delivered a judgement agreeing with Mellish LJ]
Bramwell LJ
It is clear that if the plaintiffs in these actions had read the conditions on the tickets and not objected, they would have been bound by them. No point was or could be made that the contract was complete before the ticket was given... We have it, then, that if the plaintiffs knew that what was printed was the contract which the defendants were willing to enter into, the plaintiffs, not objecting, are bound by its terms, though they did not inform themselves what they were. The plaintiffs have sworn that they did not know that the printing was the contract, and we must act as though that was true and we believed it, at least as far as entering the verdict for the defendants is concerned. Does this make any difference? The plaintiffs knew of the printed matter; both admit they knew it concerned them in some way. Though they said they did not know what it was, yet neither pretends that he knew or believed it was not the contract. Neither pretends he thought it had nothing to do with the business in hand, that he thought it was an advertisement or other matter unconnected with his deposit of a parcel at the defendants' cloak room. They admit that for anything they knew or believed, it might be, only they did not know or believe it was, the contract. Their evidence is very much that they did not think, or thinking did not care much about it. Now they claim to charge the company; to have the benefit of their own indifference. Is this just? Is it reasonable? Is it the way in which any other business is allowed to be conducted? Is it even allowed to a man to ' think,' ' judge,' ' guess,' ' chance ' a matter, without informing himself when he can, and then when his 'thought,' judgment,' 'guess,' or 'chance' turns out wrong or unsuccessful, claim to impose a burden or duty on another which he could not have done had he informed himself as he might?... Could the defendants practically do more than they did? Had they not a right to suppose either that the plaintiffs knew the conditions, or that they were content to take on trust whatever is printed?... Has not the giver of the paper a right to suppose that the receiver is content to deal on the terms in the paper? What more can be done? Must he say, 'Read that?' As I have said, he does so in effect when he puts it into the other's hands...
The difficulty I feel as to what I have written is that it is too demonstrative, but, put in practical language, it is this - the defendants put into the hands of the plaintiffs a paper with printed matter on it, which in all good sense and reason must be supposed to relate to the matter in hand. This printed matter the plaintiff sees, and is either bound to read it and object if he does not agree to it, or if he does read it and not object, or does not read it, he must be held to consent to its terms. Therefore, on the facts, the Judge should have directed verdicts for the defendants.
... No one can read the evidence in this case without seeing the mischief of encouraging claims so unconscientious as this.