July, was entirely lost, and was never received by Baird & Co. in. Cincinnati. PROOF-ERRO NEOUS INSTRUC 1. Among the charges excepted to in the motion for a new trial is the following, which is set out in the ninth ground: PLEADING AND "If the Central R. did not put the melons in good, safe cars, and they had to be transferred from such TION. cars, and damage accrued by the transfer, caused by such being in such cars, then you should find for the plaintiff such damages. It will be observed that the declaration does not complain that the melons had been damaged because the defendant did not put the melons in safe cars, and that for that reason they had to be transferred to other cars, and were damaged in the transfer; but the complaint is that the plaintiff was injured and damaged by the failure of the company to deliver the cars. There is no complaint in the declaration that the melons were damaged by unsafe cars, or by the transfer of the melons to other cars. The testimony shows that the melons were delivered at Indianapolis within a reasonable time from the date of shipment, and that the consignee of the plaintiff refused to receive them because some of them were bruised and others were rotten. The court, in giving the charge complained of, changed the issue as made by the pleadings in this case. The issue as made by the pleadings was failure to deliver in accordance with the contract. The issue as made by the charge of the court was damage to the melons on account of the unsafe cars, and the transfer from the defendant's cars to others belonging to different roads. When a plaintiff brings a suit for damages, alleging that the defendant had injured and damaged him by failing to deliver certain property at a certain place, he has no right to change the issue on trial, and claim damages on another and different cause of action, without an amendment to the pleadings. We think, therefore, that the court erred in giving this charge to the jury, thereby changing the issue as made by the plaintiff in the declaration. ITING LIABILITY. 2. We think the court erred in giving this charge, for another reason. The plaintiff put in evidence a written contract made between him and the defendant. That contract contains the following stipulation: "Losses occurring from the perishable nature or inherent defects of property excepted, . . . . CONTRACT IIM it being distinctly understood that the responsibility of each company over whose lines shipments shall be transported, shall cease as a common carrier at the station where delivered to the next carrier or to the consignee." It is true that a common carrier cannot limit his liability by any notice given or in any receipts given, but it "may make an express contract, and will then be governed thereby." Code, § 2068. Here, then, was a contract signed by the plaintiff and the defendant, wherein it was expressly stipulated that the company's liability should cease as a common carrier when the melons were delivered to the next carrier. The freight bills introduced by the plaintiff show the different railroads over which these melons were to be forwarded, and the proportion of freight to which each was entitled. These bills show that one of the roads over which the melons were to be forwarded was the Western & Atlantic R., in this State. The testimony shows that the inelons were delivered by the Western & Atlantic R., in Chattanooga, to the Nashville & Chattanooga R. and were transferred by the latter railroad from the cars in which they were originally shipped into their own cars. We can, therefore, infer from this testimony that the Central R. delivered these melons to the Western & Atlantic R., and that the latter delivered them to the Nashville & Chattanooga R., and that they were then carried to Indianapolis. In accordance with the stipu lation in the contract signed by the plaintiff and the defendant, the liability of the defendant ceased when it delivered the melons to the Western & Atlantic R. The testimony shows that at the time of this delivery to the Western & Atlantic R. the melons were in good condition. If when they arrived at Indianapolis the consignee, Duckwald, who was the agent of the plaintiff, refused to receive them, on account of their being rotten and bruised, we do not see how, under this contract, the defendant, the Central R. Co., can be held liable therefor, especially as one of the stipulations of the contract was that they should not be liable for "losses occurring from the perishable nature or inherent defects of property shipped." This disposes of the two first cars of melons shipped, and brings us to the consideration of the liability of the defendant for the loss of the third car. EVIDENCE SUIT. ΤΟ OF as 3. It will be remembered that this car was never delivered to Baird & Co., the agents of the plaintiff, in Cincinnati, and so far disclosed by the records, was never heard of after it WITH left Waldron, the place from which it was shipped. The plaintiff in error complains, in the tenth grounds of the motion, that the court refused to allow Avant, the plaintiff, to testify as follows: That, after Holt sued for the car (919) of water-melons, Avant came to R. F. Lyon, the attorney for defendant, and proposed that if he, Lyon, would give him all the papers in connection with this shipment, to enable him to defend against Holt, he would withdraw this suit as to this car-load of melons, and it would be all right; that Holt had sued Avant for this car of melons, and Avant had refused to pay, and had defended on the ground that he had not received the melons; that Holt's agent had ordered them shipped to a different market; that such defence was successful, and that Avant paid the costs, and Holt stopped the suit. The court seems to have excluded this testimony on the ground that it was evidence of a compromise. We think the testimony was not admissible, and that it was not error to exclude it, although the court may have given the wrong reason for excluding it. The ruling was right, because there was no plea under which it could have been admitted. If the defendant had filed the proper plea, and had offered this testimony to support it, it would have been admissible. Judgment reversed. Connecting Lines-Goods Damaged while in the Possession of other Road than one Sued-Sec. 2084, Georgia Code.-Where suit was brought against a railroad company, alleging that certain hams were delivered to the defendant at Opelika, to be carried thence to Columbus, and there delivered to the plaintiff, and that, for want of due care and diligence by the defendant and its servants, the hams, while in its custody, became unsound and damaged, and that, upon the refusal of the plaintiff to receipt for them as in good order, the defendant refused to deliver them, and appropriated them to its own use, there being no allusion in the declaration to any bill of lading, or to any receipt of the goods from a connecting line of railway; and where the evidence of the plaintiff himself was that, in all probability, the hams were damaged before they were delivered at Opelika, and the character of the damage itself negatived any theory that it occurred within that time during which the hams were in defendant's possession,-it was error to give in charge section 2084, Code, touching the liability to the consignee of the last of a connecting line of railroads. Where the strict legal rights of a defendant are insisted upon, the plaintiff cannot sue for one cause of action, and recover for another. Columbus & W. R. Co. v. Tillman (Ga.), 5 S. East. Rep. 135. Where a railroad company delivers to a shipper a bill of lading guaranteeing a certain rate over connecting lines, it holds itself out to the shipper as authorized to enter into a binding contract on behalf of the connecting carriers, and if their charges exceed those guaranteed it is liable to refund the excess. Provision of a bill of lading that the carrier shall not be held liable for damage to goods after they have left its own line have no relation to that part of the contract which fixes and guarantees the rate of carriage. APPEAL from circuit court, Sebastian county. R. B. Rutherford, Judge. G.W. Shinn for appellant. Geo. H. Sanders and E. E. Bryant for appellees. FACTS. COCKRILL, C. J.-This is an appeal by the railway company from a judgment recovered by J. B. Daniels & Co. for an overpayment of freight they had been compelled to make. The action was based upon two bills of lading issued by the appellant, and was tried on the following agreed statement of facts, viz.: "On the third and fifth of October, 1885, J. B. Daniels & Co. delivered to the L. R. & F. S. R. Co. 100 bales of cotton, to be shipped from Fort Smith, Ark., to Waterville, Me. The shipments were made under the two bills of lading exhibited. The cotton was delivered at its destination. The freight due on it, at the rate specified in the bill of lading, viz., $1.07 per 100 pounds, was $544.50. The amount of freight charged, and which appellees paid at destination, was $690.76, making an overcharge of $146.26 above the rate agreed on. The amount of overcharge on the L. R. & F. S. R. was $14.95; the remaining overcharges of $131.31 being by and upon other connecting carriers by which said cotton was transported. The L. R. & F. S. R. duly tendered and paid into court the $14.95 overcharge upon its line, April 28, 1886, before entering into trial of this suit." The judgment was for the full amount of the overcharge. The company contends that its liability is not greater than its proportion of the excess over the stipulated price; that is, $14.95. The solution of the question is to be determined by the terms of the contracts between the parties, and these are found in the bills of lading. The bills of lading are identical in form, REFUND EXCESS and contain two provisions pertinent to our inquiry, as follows, viz.: "It is understood that railroads connecting with this line recognize this bill of lading, and will settle freight bill accordingly" and "Rates and delivery guaranteed only from Fort Smith to Waterville, Me. Cotton, $1.07 cts. per 100 lbs." By the execution of a contract of carriage to a point beyond its line, the contracting company held itself out to the shipper as authorized to enter into a binding contract on behalf of the connecting carriers in the line of transportation. It has stipulated that connecting carriers will recognize the contracts of carriage made with the appellees, and will settle the freight bills according to their terms, and moreover, follows this with an express guarantee that it will be done. The guarantee is unqualified. When one thus guarantees the acts of others, his liability is commensurate with that of his principals, and when they are in default he becomes at once responsible for their dereliction. Killian v. Ashley, 24 Ark. 511, 517; Brandt, Sur. § 171. COMPANY MUST CHARGES. PROVISIONS The provisions of the contracts stipulating that the appellant shall not be held liable for the loss of or damage to the cotton after it has left the line of its road have no relation to that part AGAINST LIABIL of the contract which fixes and guarantees the rate of carriage and the cases cited by the appellant's counsel, exonerating carriers from liability where the loss occurred after ITY FOR DAM AGES. delivery to the connecting carrier, have no application. The appellant, by positive agreement, has bound itself to this: that not more than $1.07 per 100 pounds should be collected of the appellees for transporting the cotton over its own and connecting lines to its destination. It must stand to the agreement, and refund the excess collected. Let the judgment be affirmed. KNOTT v. RALEIGH AND GASTON R. Co. (Advance Case, North Carolina. November 7, 1887.) A carrier, which is one of several connecting lines of road between whom there is no agreement or partnership, and which is not a party to a receipt given by the line of road which receives goods from a shipper is, in the absence of any contract, express or implied, between it and the shipper, only bound to deliver the goods in good condition to the next line of road, and is not liable for any injury happening to them while not in its possession. In an action to recover damages for injury to goods shipped over defendant road, an agent of defendant testified that the goods were delivered in good condition to the next line of road, and that his knowledge was derived from the custom of the road receiving goods from another, of examining them, and, if in good condition, receiving them, and checking them "all right." Held, that the evidence was competent to show a delivery of the goods in good condition. In an action to recover damages from a railroad company, for injury to tobacco bales from rain, while in its possession, a witness testified that he was a volunteer weather observer, appointed by the United States government, and his record of the weather, on the day the tobacco was in the hands of tue defendant, was introduced in evidence to show that it did not rain on that day until 9:45 at night,-after the tobacco had passed out of the hands of defendant. Held, that the record of the weather being official, and made by witness in the course of his public duty, was competent evidence. APPEAL from superior court, Granville county. Philips, Judge. R. W. Winston for plaintiff. E. C. Smith for defendant. DAVIS, J.-Civil action to recover damages for injury to tobacco shipped from Oxford, North Carolina, to Richmond, Virginia, tried before Philips, J., at spring term, 1887, of Granville superior court. The tobacco was delivered by the plaintiff to the Oxford & Henderson R. on the 19th of February, 1884, for 82 A. & E. R. Cas.-31 FACTS. |