Contract, What constitutes, In writing. Storage Warehouse. An oral agreement made by telephone with the owner of certain household furniture by a storage warehouse corporation to move the furniture and store it for one month for an agreed price, can be found not to have been modified or affected by a warehouse receipt, containing certain printed conditions, which afterwards was sent by the warehouse corporation to the owner of the furniture, especially where the charge for moving and storage stated in the warehouse receipt was considerably larger than that orally agreed upon, and about a month after the warehouse receipt was sent the owner of the furniture had sent a check for the smaller sum after writing upon it the words "for moving and one month storage," and this was accepted by the warehouse corporation without objection.
De COURCY, J.
There was evidence of negligence on the part of Gleason and his employees in the packing, handling and moving of the plaintiff's furniture; and it is now conceded that the jury properly could find that these men legally were the agents and servants of the defendant. The contention of the defendant is that the plaintiff, by accepting the printed receipt without objection, is bound by the "terms and conditions" therein contained and thereby has relieved it from responsibility for the negligence of its agents; and further that it is exempt from liability by the failure of the plaintiff to give notice in writing within thirty days after the damage occurred, as required by the provisions of that receipt.
The only exception taken by the defendant was to the judge's refusal to rule that on all the evidence the plaintiff was not entitled to recover. We are of opinion that this ruling was rightly refused. There was ample evidence that an oral contract was made on or before July 29, 1911, by which the defendant company agreed to pack and move the furniture. Much if not all of the damage complained of was committed while it was acting as a private carrier, and before the goods reached the storage warehouse. The jury further could find that this oral contract was not superseded by the later written contract of August first. Indeed it appears from her check, dated August 31, that the amount paid by the plaintiff for moving and storage was not the sum stated in the printed receipt, namely, $44.20, but the amount specified in the oral agreement, which was $32.75. For a breach of that oral agreement by the negligence of the defendant's agents and servants, the plaintiff was entitled to recover either in contract or in tort. Cox v. Central Vermont Railroad, 170 Mass. 129. The charge is not printed in the record, and we have no means of knowing on which ground the case was submitted to the jury; but no objection was made to the instructions that were given.
We have not found it necessary to consider the validity or effect of the terms and conditions inserted in the printed receipt. See St. 1907, c. 582, § 4.
Exceptions overruled.