knowledgment that Grady had the option to ship the horse at a higher rate, with increased liability, yet, as a matter of fact, no such offer was made. The evidence shows that the freight agent at Albany did not know the amount of the charges, and the blanks for the amounts were not filled in. The case of Burnett v. Pennsylvania R. Co. 176 Pa. 45, 34 Atl. 972, seems to be decisive of the question now before us. In that case the plaintiff was an employee of defendant at Trenton, New Jersey. He applied for and obtained free transportation from Trenton to Elmira, New York. He received two passes,―one, from Trenton to Philadelphia, which was not in evidence, and the other, an employee's trip pass, from Philadelphia to Elmira, by the terms of which he assumed 2. When transportation within two or morc states or countries.

all risks of accident. He was injured at Harrisburg, Pennsylvania, through the admitted negligence of the defendant's employees. It was proved at the trial that under the laws of New Jersey the contract by which the plaintiff, in consideration of free transportation, assumed the risk of accident, was valid, and that in that state he could not recover; and it was conceded by the defendant that in Pennsylvania the decisions are otherwise, and that such a contract will not relieve a common carrier from responsibility for negligence. There, as in this case, the contract was valid in the state where made. The transportation was safely performed into this state, and the injury occurred within this state through the negligence of the carrier. It was held that the a statute of Pennsylvania, limiting the amount of the liability of a common carrier for baggage of a passenger, did not apply where bag

(a) Theory that performance consists of deliv- gage was delivered to the carrier in Pennsyl

ery only.

Generally, part of the transportation is to take place in the state or country where the contract is made, and, if it is to terminate in another, there are, according to the prevailing view, at least two places of performance, and more, if the route extends through other states or countries. It has been held in Ohio, how ever, that even such a contract has but one place of performance, viz., the place where the goods are to be delivered. This position rests upon the theory that the performance of the contract is the delivery of the goods to the consignee, and that the transportation is merely a means of enabling the carrier to perform his contract by so delivering the goods at destination. It has accordingly been held in that state, applying the presumption that the parties intend to contract with reference to the law of the place of performance, that the validity of a stipulation against liability for negligence, in a contract made by a carrier in Indiana to transport cattle from a point in that state to a point in Ohio, is to be determined by the law of Ohio, rather than the law of Indiana. Pitsburgh, C. C. & St. L. R. Co. v. Sheppard, 56 Ohio St. 68, 46 N. E. 61.

It is difficult to understand how this case can be regarded as authority for the general proposition in HUGHES V. PENNSYLVANIA R. Co.. that the law of the place where the loss or injury occurs governs. It does appear in the statement of facts in the Ohio case that the injury occurred in Ohio; but the opinion apparently attaches no importance to that fact; and, in view of the principle upon which the case was decided, the decision would doubtless have been the same even if the injury had occurred in Indiana. And Jacobson V. Adams Exp. Co. 1 Ohio C. C. 381, applying the principle of the last case, held that the validity of a stipulation limiting the carrier's common-law liability in a contract made in New York for transportation of a package from a point in that state to a point in Ohio was governed by the law of Ohio, notwithstanding that the property was lost in New York.

In Curtis v. Delaware, L. & W. R. Co. 74 N. Y. 116, 30 Am. Rep. 271, it was held that

vania, to be transported to, and delivered in, the city of New York. The decision is upon the general principle that the law of the place of performance prevails over the law of the place where the contract is made. The court said, the place of final performance being in the city of New York, although the transportation was mostly through other states, no reason existed why a failure to deliver the baggage should not be controlled by the laws that prevail at the place of delivery. It appeared in this case that the baggage was brought safely to New York and was there lost through the negligence of the carrier; but the decision is not. expressly at least, limited to a case where the loss takes place in the state of destination.

(b). Theory that performance covers both transportation and delivery; general prima facie rule.

As a rule the courts take the view that the transportation, as well as the delivery at destination, is a part of the performance of the contract; and from this point of view there are two or more places of performance.

Contract regarded as divisible.

Viewing the contract in this light, it is possible to conceive of it as divisible into parts corresponding to the various places of performance, and as thus (upon the principle that the law of the place of performance governs) subjected successively to the law of the place

here the transportation commences, to that of any place through which the route extends. and to that of the place of destination. This seems to be the theory underlying the broad proposition in HUGHES V. PENNSYLVANIA R. Co., that the contract is governed by the law of the place where the loss or injury occurs. though this proposition is broader than the facts of the case required. This theory also seems to lie at the foundation of the cases next cited.

In Carpenter v. Grand Trunk R. Co. 72 Me. 388, 39 Am. Rep. 340, the court held that the Maine statute declaring that the holder of a railroad ticket shall have the right to stop over at any of the stations along the line of

ages for the injury. The court below held the contract to be valid, and, under instructions, a verdict was rendered for $105.50, and judgment entered thereon. This judgment was affirmed; this court saying, in a per curiam: "This written contract was made in the District of Columbia, and is to be interpreted by the lex loci contractus." Forepaugh v. Delaware, L. & W. R. Co. 128 Pa. 217, 5 L. R. A. 508, 18 Atl. 503. If, however, in the performance of the contract, the horse had been carried into Pennsylvania, and it had been injured in this state, the principle set forth in Burnett v. Pennsylvania R. Co. 176 Pa. 45, 34 Atl. 972, would, no doubt, have been applied, and the Massachusetts would govern as to the liability of the company beyond its own line.

responsibility of the defendant was to be de- |lation limiting the value of the horse to termined by the law of the state where the $100. Suit was brought to recover damcontract was being performed, and where the negligence occurred, and recovery was allowed. In the present case the facts are more strongly against the defendant, in that it is not the initial carrier under the contract, and the stipulation upon the part of each carrier was against liability for damages not occurring on its portion of the through route. In Fairchild v. Philadelphia, W. & B. R. Co. 148 Pa. 527, 24 Atl. 79, there was a contract for the transportation of a horse from Washington, District of Columbia, through Pennsylvania, to Harkimus, New Jersey. It was injured by the negligence of the defendant while in Baltimore, Maryland. The contract contained a stiputhe road, and that his ticket shall be good for a passage for six years from the time it first issued, only applied to transportation within the territorial limits of the state; and consequently did not apply to a ticket from Portland to Montreal while the ticket was being used beyond the limits of the state. The ticket in this case purported, upon its face, to be good only for a continuous trip within two days from date. The court said that within the state of Maine 2 passenger could stop over and resume his journey at any time within six years, but while using it in New Hampshire, Vermont, or Canada, the limitation would be prima facie valid, and he can only avoid this prima facie presumption by showing that by the law of such places the limitation is not valid. This seems to imply that the rights of passenger and the validity of the stipulation are successively governed by the law of each place through which the line of the defendant's road extends. In a subsequent part of the opinion, however, the court said that the question, what law governs a carrier's contract, when it stipulates for transportation through more than one state or country, and the laws of such states or countries are not the same, was a difficult question, as to which the authorities were confused and conflicting, but that it was not necessary to discuss the question because no conflict was shown to exist.

In Barter v. Wheeler, 49 N. H. 9, 6 Am. Rep. 434, the contract was made in Ohio for the transportation of freight from a point in that state to a point in New Hampshire. The contract was for transportation over the lines of several independent connecting carriers, and the question was whether an intermediate carrier was responsible to the shipper for a loss of goods occurring on its line in New York. The court said that, if the contract was to have been performed wholly in New York, it would clearly have been governed by the laws of that state, and it was unable to perceive any reason why, in respect to that part which was performed in New York, the law of that state should not govern.

In Gray, v. Jackson, 51 N. H. 9, 12 Am. Rep. 1, an express company received in New Hampshire a package for transportation to a point in Massachusetts, beyond its own line. The loss occurred in Massachusetts, and the court seems to have assumed that the law of

In Rixford v. Smith, 52 N. H. 355, 13 Am. Rep. 42, the court, speaking of a contract for transportation of cattle from a point in Vermont to a point in New Hampshire, said that, so far as the contract was to be performed in Vermont, it would seem that it must be governed by the laws of that state. The question in this case was as to the liability of a carrier for loss or damage caused by an inherent defect in the thing or animal carried.

Contract regarded as entire and indivisible.

Most of the cases, however, regard the contract as entire and indivisible; and in this view there is one contract to be performed in part in two or more jurisdictions.

Thus, the Illinois supreme court said, in Illinois C. R. Co. v. Beebe, 174 Ill. 13, 43 L. R. A. 210, 50 N. E. 1019, Affirming 69 Ill. App. 363, with reference to a contract made in Iowa for the transportation of live stock to a point in Indiana, the loss complained of having occurred in Illinois: "If, however, the contract be regarded as one which was to be partly performed in Iowa and partly in Illinois, it yet must be said of it that it is a contract which is entire and indivisible. 'If a contract be entire and indivisible, and is to be partly performed in the state where it is made and partly in another, then the lex loci contractus, or the law of the state where it is made, governs as to its validity; and if invalid there, it is invalid everywhere else.' Inasmuch, therefore, as the contract under the construction contended for by appellant was partly to be performed in Iowa, it must, as to its validity, nature, obligation, and interpretation, be governed by the law of Iowa."

So, in McDaniel v. Chicago & N. W. R. Co. 24 Iowa, 412, the court, referring to a contract made in Iowa for the shipment of cattle from a point in that state to a point in Illinois, said that the contract was entire and indivisible.

The validity of a stipulation in a bill of lading limiting the carrier's liability depends upon the law of the state of the contract. The carrier's contract does not vary with each jurisdiction in which it may be partially performed, for the service rendered is single, the transportation performed and the liability assumed being the measure on the one side by

been to show the law of the District of Columbia; for in Grogan v. Adams Exp. Co. 114 Pa. 523, 60 Am. Rep. 360, 7 Atl. 134, this court expressly refused to follow the Hart Case.

limitation of liability held void. In the | Pennsylvania R. Co. 112 U. S. 331, 28 L. ed. Fairchild Case nothing is said about the law 717, 5 Sup. Ct. Rep. 151, could only have of Maryland, where the injury occurred, though, as a matter of fact, the limitation of liability was valid in that state, as appears in Brehme v. Dinsmore, 25 Md. 328. The Fairchild Case, when properly understood, is authority only for the proposition that a contract containing a limitation of liability, made in a state where it is valid, will be enforced in this state, when an injury occurs in the course of transportation through a state where such a contract is not contrary to public policy. It is only an application of the doctrine of Forepaugh v. Delaware, L. & W. R. Co. 128 Pa. 217, 5 L. R. A. 508, 18 Atl. 503, to a slightly differing state of facts. The reference to Hart v.

which the compensation to be paid on the other side is determined. Pittman v. Pacific Exp. Co. 24 Tex. Civ. App. 595, 59 S. W. 949.

Regarding the contract in this light, the court is confronted with two conflicting presumptions, that is, the presumptions that the parties intended to contract with reference to the law of each place of performance. In this dilemma, the courts, as stated in Morgan v. New Orleans, M. & T. R. Co. 2 Woods, 244, Fed. Cas. No. 9,804, usually fall back on the general rule that a contract is to be governed by the law of the place where it is made, since in such case there are two equal and opposite presumptions, and neither of them can pre

vail.

A distinction may well be made between contracts of a general nature, and those of common carriers of goods through several states. Much stress is laid in the brief of appellants upon the opinion of Justice Bradley in Morgan v. New Orleans, M. & T. R. Co. 2 Woods, 244, Fed. Cas. No. 9,804. The contract in that case was made in New York, to be performed, in an important part, there, and in part by the building of a railroad in Louisiana. Another important part was to parently laid down in the HUGHES CASE, that the law of the place where the loss or injury occurs, governs, the distinction in respect of the divisibility above pointed out will scarcely suffice to reconcile the decision in the HUGHES CASE with the general rule above stated, that the contract is governed by the law of the state where it is made, and where the transportation thereunder commences; for, regarding the contract of the Pennsylvania company as a separate contract, independent of that of the initial carrier, its contract must be regarded as made in New Jersey, where the transfer to its line from the initial line took place; and under the general rule the contract would, therefore, be subjected to the law of New Jersey, rather than the law of Pennsylvania. It is difficult to understand how the decision in Fairchild v. Philadelphia, W. & B. R. Co. 148 Pa. 527, 24 Atl. 79, can be regarded as an authority against the general rule. Upon the other hand, it seems directly to support and apply such rule. As is stated in the opinion in the HUGHES CASE, nothing is said in the opinion in the Fairchild Case about the law of Maryland, where the injury occurred. The on

It is accordingly well established by the weight of authority as a prima facie rule,which, however, is subject to be displaced when the circumstances indicate a contrary intention, -that the nature, obligation, and interpretation (including the validity of particular stipulations) of a contract, made in one state or country for the transportation of persons or property from a point in that state to a point in another, are to be governed by the law of the state where the contract is made and the trans-ly reference in the Fairchild Case to the law portation commences. The cases sustaining this rule are cited in connection with the particular matters to which the rule has been applied. The general principle which these cases apply to specific matters is well stated in the following case:

The general rule that contracts are to be governed as to their nature, their validity, and their interpretation by the law of the place where they are made, unless it clearly appears that the contracting parties had some other law in view, applies to contracts of common carriers for the transportation of merchandise. Brockway v. American Exp. Co. 171 Mass 158, 50 N. E. 626.

It will be observed that there is a distinction, in respect of divisibility, between the contract involved in HUGHES V. PENNSYLVANIA R. Co. and a contract for transportation by a single carrier from a point in one state to a point in another. A contract of the former kind, especially when, as in the HUGHES CASE, there is an express stipulation confining the liability of each carrier to its own route, may be regarded as divisible without denying that a contract of the latter class is entire and indivisible. Even in the absence of the broad proposition ap

of Maryland, so far as the report of the case shows, was the statement in the charge of the lower court that the law of Washington and the law of Maryland were the same. The decision, however, was expressly referred to the law of the District of Columbia as the place where the contract was made; and there is no intimation in the opinion that the law of Maryland, where the injury occurred, would have governed if it had been different from the law of the District. The statement in another part of the opinion in the HUGHES CASE, that the law of Maryland was enforced in the Fairchild Case because the injury occurred in that state, is at least misleading, since, as already shown, the court expressly applied the law of the District of Columbia in that case, and the fact that that law was the same as the law of Maryland (even assuming that that fact was before the court in the Fairchild Case) scarcely. justifies the statement that the law of Maryland was enforced because the injury occurred in that state.

In The Oranmore, 24 Fed. 922, the validity of a stipulation exempting the carrier from liability was determined by the law of England, and the stipulation was accordingly upheld,

As affected by law of corporation's domicil. occurred, at least when the particular ques