rule arises from the fact that the goods are perishable or liable to deteriorate rapidly from internal causes. In all cases the presumption of law is against the carrier: Code, secs. 2064, 2066. The word "loss," as used in those sections, includes injury or damage to the goods: Richmond etc. R. R. Co. v. White, 88 Ga. 813.

4. The office of a bill of lading is to embody the contractof carriage, as well as to evidence the receipt of the goods; and when the shipper accepts it without objection before the goods have been shipped, and permits the carrier to act uponit by proceeding with the shipment, it is to be presumed that he has accepted it as containing the contract, and that he has assented to its terms, except, as we have seen, in so far as it undertakes 386 to limit the general liability of the carrier. Incident to every such contract are certain matters which, when not expressed in the instrument, enter into and form a part of it by implication of law, and one of these is the time of performance. If no time is expressed, the instrument is not on that account to be regarded as incomplete, so as to admit proof of a distinct and separate agreement as to time. In such case the parties are presumed to have intended that the carrier's obligation as to the time of performance shall not extend beyond that imposed upon it by law in all undertakings for the transportation and delivery of goods, and which requires no more than that "the same be done without unreasonable delay": Code, sec. 2073. This implied agreement is as much a part of a bill of lading silent as to the time of performance, as if expressed in it in so many words; and the rule which forbids the introduction of parol proof to vary the terms of a written instrument excludes evidence of a prior or contemporaneous parol agreement that the goods shall be delivered within a definite and specific time. "There is no rule of law better settled or more salutary in its application to contracts than that which precludes the admission of parol evidence to contradict or substantially vary the legal import of a written agreement": See Martin v. Cole, 104 U. S. 36, 38; Naumberg v. Young, 44 N. J. L. 331; 43 Am. Rep. 380; Jones on Construction of Commercial and Trade Contracts, 193-195, 245 et seq., 308, 309. In Hutchinson on Carriers, edition of 1891, sections. 126, 127 a, it is said: "Except in the recital or acknowledg ment of the receipt of goods and of their quantity and condition when received, bills of lading are strictly written.

contracts between the parties, and come within the general rule which precludes the introduction of parol evidence to contradict or vary such contracts. . . . . And not only is such evidence inadmissible to change or vary in any particular the express 387 terms of the contract, but in these instruments, as in all other written contracts, there may be implied obligations as to which the contract may be entirely silent, but which result by necessary implication or construction from the very nature of the contract itself; and such implied obligations can no more be varied by verbal evidence than the express written stipulations of the parties": See, also, Louisville etc. Ry. Co. v. Wilson, 119 Ind. 352, and Pennsylvania Ry. Co. v. Clark, 2 Ind. App. 146. In the case last cited it was held that parol proof was inadmissible to show an undertaking to ship on a certain train, the bill of lading being silent as to the time of shipment, and the effect of such evidence being to vary the implied agreement to ship within a reasonable time. "An agreement to do a thing within a definite time can never be identical in spirit or substance with an agreement to do it within a time not fixed, and which in law is to be merely a reasonable time. And, where the written contract is left in that indefinite shape, an agreement to make it definite is an agreement to alter it; and this cannot be done by any contemporaneous parol understanding": Stange v. Wilson, 17 Mich. 346; Liljengren etc. Co. v. Meade, 42 Minn. 420; Stone v. Harmon, 31 Minn. 512; Driver v. Ford, 90 Ill. 595. The responsibility imposed upon the carrier by the implied contract or duty to transport and deliver within a reasonable time is merely that of an ordinary bailee for hire, and renders the carrier liable only for such damages from delay as the bailor may have suffered by its negligence; but if the contract is that this service shall be performed within a certain specified time, the carrier will be held to strict performance, and no degree of diligence will excuse the failure to perform within that time. In the present case the bills of lading were silent as to the time of transportation and 388 delivery, but the plaintiffs, over objection, were permitted to introduce evidence to show a prior and contemporaneous parol agreement that the goods were to be shipped by a certain "fast freight schedule," which was also admitted in evidence over the defendant's objection, and which stated that fruit trains shipped under it would leave Atlanta at a certain hour, "arriving in New York before 12 o'clock the

second night, in good time for early market of the third morning." Under the pleadings the court erred in admitting this testimony. The plaintiffs having proved a written contract of carriage, a part of which was an implied stipulation that the carrier should be allowed a reasonable time for performance, they could not be permitted in this manner to substitute a warranty to deliver within a definite and specific time. If the understanding of the shippers was that the goods were to be delivered within a certain time, and it was intended that this should form a part of the contract, they should have seen to it that this understanding was embraced in the written instrument which the carrier tendered them as containing the contract of carriage. But they accepted it as it stood, without objection, and permitted the goods to be shipped under it; and it is not pretended that the understanding as to delivery in a specified time was omitted by fraud or mistake. A bill of lading thus accepted and acted upon, though signed only by the carrier, has the same effect, as to being varied by parol, as if signed also by the shipper, and must be looked to as the final repository and sole evidence of the contract of carriage: 17 Am. & Eng. Ency. of Law, tit. Parol, 432. And see Richmond etc. R. R. Co. v. Shomo, 90 Ga. 496, and authorities cited.

5. Had the plaintiffs sued upon the implied contract or duty to deliver within a reasonable time, evidence as to the schedule might have been received, together with 389 all other relevant facts and circumstances touching that particular shipment, as well as touching that class of shipments. generally, to ascertain what length of time would be reasonable. But the contract alleged was a contract to deliver in a definite and specific time; and the plaintiffs must be held to the case stated in the declaration. Evidence as to what would be a reasonable time was therefore inadmissible, and no recovery could be had for failure to deliver in a reasonable time: See Pennsylvania Ry. Co. v. Clark, 2 Ind. App. 146, and Snow v. Indiana etc. Ry. Co., 109 Ind. 422. If the necessary allegation is supplied by amendment, evidence as to what would be a reasonable time will then be admissible.

It follows that the court below erred in not granting a new trial.

Judgment reversed.

CARRIERS-CONNECTING-WHEN FIRST CARRIER LIABLE ON THROUGH SHIPMENT.-A railroad company receiving goods consigned to a place beyond the terminus of its own lines undertakes to convey the same safely to the point of destination, and will be liable for the loss of such goods on connecting lines: Falvey v. Georgia R. R., 76 Ga. 597; 2 Am. St. Rep. 58, and note; Savannah etc. Ry. Co. v. Pritchard, 77 Ga. 412; 4 Am. St. Rep. 92, and note. See, also, the notes to St. Louis etc. Ry. Co. v. Weakley, 7 Am. St. Rep. 118, and Savannah etc. Ry. Co. v. Harris, 23 Am. St. Rep. 558. The power of a carrier to contract for transportation beyond his own route is thoroughly discussed in the extended note to Wells v. Thomas, 72 Am. Dec. 230.

CARRIERS-LIMITING LIABILITY BY NOTICES.-NECESSITY FOR ASSENT BY SHIPPER: See the extended note to Kansas City etc. R. R. Co. v. Rodebaugh, 5 Am. St. Rep. 720.

CARRIERS-NEGligence-BurdeEN OF PROOF.-In an action for negli. gence for loss or injury of goods in transportation, the burden of proof is upon the carrier to show that the injury or loss complained of is attributable to one of the causes or perils against which the contract secures immunity: Terre Haute etc. R. R. Co. v. Sherwood, 132 Ind. 129; 32 Am. St. Rep. 239, and note; Johnson v. Alabama etc. Ry. Co., 69 Miss. 191; 30 Am. St. Rep. 534, and note.

BILLS OF LADING-ACCEPTANCE-PRESUMPTION.-The fair and honest acceptance of a bill of lading without dissent raises a presumption that all limitations contained therein were brought to the shipper's knowledge, and agreed to by him: Merchants' etc. Transport. Co. v. Bloch, 86 Tenn. 392; 6 Am. St. Rep. 847. To the same effect: Pacific Express Co. v. Foley, 46 Kan. 457; 26 Am. St. Rep. 107, and note. See, also, the note to Railway Co. v. Cravens, 38 Am. St. Rep. 241, where the cases are collected, and the extended note to Kansas City etc. R. R. Co. v. Rodebaugh, 5 Am. St. Rep. 719, and Bissell v. New York etc. R. R. Co., 82 Am. Dec. 380.

BILLS OF LADING-PAROL EVIDENCE TO AFFECT.-Parol evidence is not admissible to vary the terms of that portion of a bill of lading which con. stitutes the contract: Van Etten v. Newton, 134 N. Y. 143; 30 Am. St. Rep. 630, and note; but see Savannah etc. Ry. Co. v. Collins, 77 Ga. 376; 4 Am. St. Rep. 87, and note.

SAVANNAH AND OGEECHEE CANAL Co. v. SHUMAN.

[91 GEORGIA, 400.]

MANDAMUS LIES AGAINST CORPORATIONS to compel them to perform imperative duties imposed upon them by the express provisions of their charters.

MANDAMUS AGAINST CORPORATION.-A private person may, by mandamus, enforce the performance by a corporation of a public duty in which he has a special interest. Hence a lumber merchant specially interested in the navigation for which a canal company is chartered, and who sustains special damages from its violation of its charter, may compel it by mandamus to perform the duties for which it was incorporated. MANDAMUS IS A DISCRETIONARY REMEDY.-A judgment granting the writ is not subject to reversal on appeal without clear proof of an abuse of judicial discretion.

MANDAMUS AGAINST CORPORATION - DEFENSES.-In a proper case for a mandamus to compel a corporation to perform duties imposed upon it by its charter, it cannot defend on the grounds that it is without funds, and that the performance of such duties would be unremunerative. Although want of funds may be a defense to the infliction of punishment for disobedience of the writ, it is not conclusive ground against its issuance. If the performance of the duties imposed upon the corporation are no longer desirable or remunerative it should surrender its charter.

Lawton & Cunningham and T. M. Cunningham, Jr., for the plaintiff in error.

W. C. Hartridge, for the defendant in error.

400 LUMPKIN, J. 1. The sixteenth section of the charter of the Savannah, Ogeechee, and Altamaha Canal Company (Dawson's Compilation, 97) declares, “that the said corporation shall be obliged to keep the said canals and locks in good and sufficient order, condition, and repair, and at all times free and open to the navigation of boats, rafts, and other water crafts; and for the transportation of goods, merchandise, and produce," etc. Counsel on both sides referred us to the above charter as that of the plaintiff in error, which is designated in the record as the "Savannah and Ogeechee Canal Co.," and is also 401 thus designated in the case of State v. Savannah etc. Canal Co., 26 Ga. 665. We therefore presume, without investigation, that the corporate name of this company was at some time properly amended by striking out "Altamaha" and placing "and" before "Ogeechee." It is apparent, without argument, that under this charter it is the imperative duty of this company to keep its canal in a navigable condition, and according to the principle of the ruling of this court in the case above cited the performance of this duty may be enforced by mandamus.

2. It appears from the record that the defendant in error is engaged in the lumber business, and for several years had used the canal in question for transporting timber and other things, and that because of its unnavigable condition he was compelled to ship his timber by a more circuitous and expensive route. It is clear, therefore, that he is specially interested in the navigation for which this canal was chartered, and that by the failure of the company to keep the canal navigable he sustains a special damage in which the general public does not share. Under these circumstances he was, in our opinion, entitled to the writ of mandamus to