to grant immunity to the defendants in case of non-performance of that duty. Speaking generally, the contract should not be so interpreted as to relieve the defendants from their own negligence.

Suppose that there was in fact no fence between the plaintiffs' land and the railway, and that the agreement was that the plaintiffs should keep their horse in the stable upon that land and not allow it to escape from the stable to the railway; and suppose that the agreement provided that the defendants could, for pay, store chattels in the stable with right of access to these chattels at all times. If the employees of the defendants in the night time, without notice to the plaintiffs, entered the stable, finding the door securely closed, removed the chattels, and left the door open so that the horse could escape, and did escape, and did go upon the defendants' railway and did damage to the railway, would the plaintiffs be liable for such damage? I think not. If the horse was killed by the defendants under such circumstances as, apart from the agreement, would render them liable, they would not be protected by reason of such agreement.

For reasons above given, I think the appeal should be allowed and judgment entered for the plaintiffs against the defendants for $200 with costs of the action, and the defendants should pay the costs of the appeal.

FALCONBRIDGE, C.J.:-I find myself constrained to agree with the opinions of the learned Judge appealed from and of my brother Riddell.

It is unfortunate, in view of the able dissenting judgment of my brother Britton, that the case can go no further.

The appeal is dismissed with costs.

CARRIER-CONTRACT-LIMITING LIABILITY.

BOYD, C.]

[DIVISIONAL COURT.

LAMONT V. CANADIAN TRANSFER Co.

(19 0.L.R. 291.)

Carriers--Lost Luggage-Contract of Carriage-Receipt-Condition Limiting Liability-Notice-Agents of Owner-Alteration of Oral Contract -Negligence-Damages.

The defendants were an incorporated company, a main part of whose business was to carry and deliver baggage or luggage for customers, to and from railways, steamboats, and other public conveyances. The plaintiff, who was a passenger on a steamer, on his arrival at the wharf in Toronto handed the steamer check for his trunk to his father-in-law, R., to have the trunk sent up to R.'s house. R., who was an employee in the Customs, handed the check to H., also a Customs officer, and asked him to pass the trunk and have it sent up to the house. H. gave D., the defendants' agent on the wharf, the check and twenty-five cents which R. had given him, told him to have the trunk sent up to R.'s house, and walked away. D. then gave the money to S., a soliciting agent of the defendants, and proceeded to take the steamer check off the trunk. H. returned in about fifteen minutes after he had left the check and the money with D., and asked him for a receipt for the trunk. S. then wrote out the receipt and handed it to H., who looked at but did not read it, nor was his attention called to any terms upon it-he knew, however, that the defendants were in the habit of giving receipts upon taking over baggage for transfer. About an hour and a half thereafter H. handed the receipt to R., who passed it on to the plaintiff, who did not read it till about ten days afterwards. The receipt was a document which had legibly printed on its face a notice by which the defendants agreed to receive and forward the articles for which the receipt was given, subject to a condition that they should "not be liable for any loss or damage of any trunk for over $50." The receipt was in a form generally used by the defendants in the course of their business, and no proof was given that their agents who did the work of receiving and receipting for baggage had authority to receive it on any other footing. The trunk was lost or stolen; but without negligence on the part of the defendants. The defendants tendered to the plaintiff $50 as in full discharge of their liability under their contract, which the plaintiff refused, and brought this action:

Held, MEREDITH, J.A., dissenting, that the plaintiff was entitled to recover the full value of the trunk and its contents, inasmuch as the defendants, who as common carriers were liable to their customer for the full value of the property entrusted to their care, in the absence of notice, brought home to the customer, that their liability was limited to a certain sum, had failed to discharge the onus which lay upon them to shew that the plaintiff at the time when he made his contract with the defendants had received notice that their liability was limited, or that the stipulation limiting their liability had been at any time accepted by him as a term of his contract.

Harris v. Great Western R.W. Co. (1876), 1 Q.B.D. 515, Henderson v. Stevenson (1875), L.R. 2 H.L. Sc. 470, and other cases bearing on the liability of carriers for loss or damage to luggage discussed.

Per MEREDITH, J.A., that the question whether the plaintiff had accepted the condition limiting the defendants' liability was one of fact, and the finding of the trial Judge in favour of the defendants should not be reversed unless plainly shewn to be wrong on the evidence.

Judgment of a Divisional Court, reversing the judgment of BoYD C., at the trial, affirmed.

THIS was an appeal by the defendants from the judgment of a Divisional Court reversing the judgment of BOYD, C., at the trial dismissing the action with costs.

The action was brought by the plaintiff to recover the value of a trunk carried by the defendants for hire, and lost or mislaid. The facts are fully stated in the judgments.

The action was tried at Toronto on the 10th April, 1908, before BOYD, C., without a jury.

R. S. Robertson and R. F. Segsworth, for the plaintiff.

B. N. Davis, for the defendants.

April 11, 1908. BOYD, C.:-The claims of the plaintiff to recover are put on three grounds: (1) that the defendants undertook for hire to receive and transfer his trunk to its proper destination (53 Robert street, Toronto), without conditions; (2) that, if there was any condition that in the event of loss they were not to be liable beyond the extent of $50, it was not made known to the plaintiff till after the loss, and so he is not affected by it; (3) that the evidence shews that the defendants were negligent and are chargeable as for the conversion of the trunk.

The defendants are, no doubt, in the position of common carriers, and they have become incorporated under the general Dominion statute for the purpose of carrying on a baggage transfer company. The practical operations are carried on by a body of soliciting agents who take the baggage checks from passengers, receive the fixed fee charged, and give a voucher or receipt, which uniformly has on its face a notice legibly printed of the terms on which the transfer is undertaken. It is

thus expressed (so far as material in this case): "The Canadian Transfer Company agrees to receive and forward the articles for which a receipt is given, subject to the following conditions, viz., this company will not be liable for any loss or damage of any trunk for over $50."

The law is that a common carrier who gives no notice limiting his liability is an insurer of the property received; but, if he gives notice, which is brought home to the customer, that he will be liable only to a limited extent, he ceases to be an insurer beyond that limit.

Here the general system of the company was to take the baggage with restricted liability; and no proof was given that the minor agents who did the work of receiving and receipting had authority to receive baggage on any other footing, so as to bind the company to a larger responsibility. See what is said on this by Blackburn, J., in Harris v. Great Western R.W. Co. (1876), 1 Q.B.D. 515, at pp. 533-4.

What happened was that the plaintiff's steamer check was given to his father-in-law, who was in the Customs; he passed it to Horn, a friend, also in the Customs, who gave it to Dunn, the defendants' agent in charge of the baggage room on the wharf, and paid him twenty-five cents. Dunn took the money and checked the baggage with the defendants' check, taking off the steamer check. Dunn handed the money to Saunders, the soliciting agent of the defendants, who forthwith made out a receipt for it on the usual form. In about fifteen minutes afterwards, Horn came back and got the receipt, which he says he looked at, but did not read. He knew the company gave receipts, and it was a common thing for passengers to leave their checks with the landing-waiters (such as Horn) to be attended to. Horn must have been familiar with the modus operandi of the company and the nature of the receipt; this, I think, would be a proper inference from all the evidence. Horn gave the receipt to the plaintiff's father-in-law about 10.30 a.m., and it is not further traced, and the father-in-law was not examined.

It appears that the trunk with the defendants' check was taken over to the distributing point of the company-a baggage room in the Union Station-and was put in the north-west run of trunks, which were kept separate, and were to be distributed at 11 a.m. It does not appear to have been sent out at that time on that run, and has not been seen or heard of since-though all manner of inquiries, investigations, and advertisements have been made use of by the company; it is lost, and there is no evidence of any lack of reasonable care or precaution on the part of the company. The disappearance seems to be an unaccountable accident, and not traceable to any negligence that would render the company liable for a conversion.

I do not think that the plaintiff can escape from the effect of knowledge of the restricting notice by the plea that Horn was not his agent to receive notice, or not his agent to enter into a conditional contract. Horn was acting as the alter ego of the owner, and notice to him affected the owner, unless there was prompt repudiation of the receipt-which has not yet happened.

There is no evidence of any unconditional contract by the company-everything points the other way; there was no completion of the matter when the twenty-five cents was paid and the transfer of checks made; there was yet to be given the receipt and notice which completed the contract on the part of the company, and the receipt of it by Horn a quarter of an hour afterwards was a continuation and completion of the whole bargain as to the carriers' undertaking.

The contract was plainly spread on the fact of the receipt, which Horn took and looked at and kept and handed over to the father-in-law, and which forms the basis of the plaintiff's action. It would be most dangerous to hold that the agent or the principal taking such a receipt in such a manner is not to be bound by it because he fails to read it. The company, in the discharge of their business, can do no more; plain notice in legible print is given on the face of the receipt; and their right to be protected