all day in the yards at St. Louis, and the horses were neither fed nor watered until after they arrived at Paris. They left St. Louis some time during the night, arrived at Paris the next day, and were unloaded. They had been en route about 52 hours, and when unloaded went immediately to a pool of stagnant water and began to drink, but were driven into another pen. Their manes and tails were partly eaten off, and they were very weak and gaunt. They were removed to a farm not far distant, where they were attended by a veterinary surgeon, but 12 of them died as a result of their treatment, and 8 were sold two months later for $375. On the back of the contract of shipment was the following: "July 26, 1903.Shipper, F. E. Thomas, Kimball, Nebraska; consignee, F. E. Thomas, Paris, Illinois; No. of cars 3455 S. W. S.-Pass F. E. Thomas, parties in charge and accompanying stock. F. S. Blanchard, Agent." The car in which the animals were shipped was marked Paris, Ill. The night operator of the company at Luther, North St. Louis, testified: "July 28, 1903, train 96 [in which the horses were shipped] arrived at North St. Louis 6:12 o'clock in the morning. There was a car of horses in the train for Paris, Illinois, care of the Big Four. The consist showed this. I reported this car load of stock to the Merchants' Bridge connection," etc.

Appellant's line east from Council Bluffs, Iowa, terminated at St. Louis, and it is insisted by its counsel that the burthen of proof was upon the shipper to show a special agreement on its part to transport the horses beyond its own line, without which the carrier's obligations were fully discharged when it delivered the freight in good condition to its connecting carrier. We think, even under this claim, the evidence fairly tended to prove that the contract was for a through shipment. The company, from its conduct, must have so understood it. When, however, a carrier receives freight to be transported, marked to a particular place, he is prima facie bound to carry and deliver at that place. By accepting the goods so marked he impliedly agrees so to do, and he ought to be answerable for the loss. Illinois Central Railroad Co. v. Copeland, 24 Ill. 332, 76 Am. Dec. 749; Illinois Central Railroad Co. v. Johnson, 34 Ill. 389; Illinois Central Railroad Co. v. Frankenberg, 54 Ill. 97, 5 Am. Rep. 92.

But it is said the agreement on its face limits the liability of the defendant to its own line. Even if it should be admitted that such is the fair construction of the bill of lading, it was still a question of fact for the jury and the Appellate Court whether or not that contract was assented to by the shipper. Whatever may be the rule in other jurisdictions, it is well settled in this state that whether the terms of a special agreement limiting the liability of the common carrier

*

*

was understood, and entered into by the consignor and assented to by him, is a question of fact. The earlier cases so holding will be found cited in Chicago & Northwestern Railway Co. v. Simon, 160 Ill. 648, 43 N. E. 596. In that case we said: "By the adjudications of this court the rule is established, as a principle of the common law, that, where a carrier receives and accepts goods marked to a place beyond the terminus of its own line, its receipt for goods so marked is to be construed as a prima facie contract to carry and deliver at the point so marked. * Neither can the carrier limit his common-law liability safely to deliver such property at the place to which the same is to be transported, by any stipulation or limitation expressed in the receipt given for such property. Starr & C. Ann. St. c. 114, par. 96, and chapter 27, par. 1. By these two sections (the first adopted in 1872, and the second in 1874) the right to limit a common-law duty in a receipt was prohibited. It has however, been recognized by frequent decisions of this and other courts that a common-law duty may be limited by The rule that a express contract. limitation of a carrier's liability for safe carriage and delivery of freight beyond the terminus of the carrier's own line may be made by restrictions contained in that part of the bill of lading which may constitute a contract has been recognized in this state. [Citing cases.] Where a contract limiting the liability of a carrier is contained in a bill of lading which in its entirety constitutes both a receipt and contract, the onus is on the carrier to show the restrictions of the common-law liability were assented to by the consignor (Field v. Chicago & Rock Island Railroad Co., 71 Ill. 458; Boscowitz v. Adams Express Co., 93 Ill. 523, 34 Am. Rep. 191); and whether there is such assent is a question of fact. The mere receiving the bill of lading without notice of the restrictions therein contained does not amount to an assent thereto"-citing cases. And in that case it was further held, whether the limitations in the bill of lading were assented to by the consignor was a question of fact determined by the Appellate and trial courts adversely to the appellant. To the same effect are Illinois Central Railroad Co. v. Carter, 165 Ill. 570, 46 N. E. 374, 36 L. R. A. 527, and Chicago & Alton Railroad Co. v. Davis, 159 Ill. 53, 42 N. E. 382, 50 Am. St. Rep. 143.

If it be conceded that the case of Black v. Wabash, St. Louis & Pacific Railway Co., 111 Ill. 351, 53 Am. Rep. 628, announces a different rule, still the later cases would govern. The Black Case does, however, hold that all facts and circumstances connected with the execution of the special contract were proper to be considered by the jury. The reasons for imposing the burthen of proof upon the carrier in such case, as distinguished from ordinary cases of contract

between parties, will readily suggest themselves. But it is sufficient for the purposes of this case to say that the law is settled adversely in this state to appellant's contention. The parol evidence is admitted, not for the purpose of changing or varying the terms of a written contract, but for the purpose of showing whether the written contract was assented to by both parties.

The tenth condition in the contract of shipment provides that no action shall be brought for damages "unless a claim for such loss or damage shall be made in writing, verified by an affidavit of the party of the second part or their agent, and delivered to the freight claim agent of the party of the first part, at his office in the city of St. Louis, within ten days from the time said stock is removed from said cars; and it is also agreed that, if any loss or damage occurs upon a connecting line, then such line shall not be liable unless a claim shall be made in like manner and delivered in like time to some officer or general agent of the line on which the loss or injury occurred." That there was on the part of the connecting carriers gross negligence, amounting to absolute cruelty to the horses, cannot be denied. Nor can it be said that, in view of the nature of the injury to the animals, the actual damage could, by any reasonable degree of diligence, have been discovered and sworn to within 10 days after they were unloaded, and it cannot therefore be said, as a matter of law, that the foregoing provision was reasonable. Baxter v. Louisville, New Albany & Chicago Railway Co., 165 Ill. 78, 45 N. E. 1003. But the question of the plaintiff having understandingly assented to that provision having been determined adversely to appellant by the jury and the Appellate Court, he was not barred of his right of action by his failure to comply with it.

The contention that the trial court erred in instructing the jury that the burthen of proof was upon the carrier to show that the plaintiff had assented to the terms and conditions of the contract of shipment is answered by Chicago & Northwestern Railway Co. v. Simon, supra, and Illinois Central Railroad Co. v. Carter, supra, and by the still later cases of Chicago & Northwestern Railway Co. v. Calument Stock Farm, 194 Ill. 9, 61 N. E. 1095, 88 Am. St. Rep. 68, and Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Patton, 203 Ill. 376, 67 N. E. 804.

It is also insisted that the trial court erred in refusing to admit in evidence the application of the plaintiff purporting to have been made by the plaintiff to the agent of the company at Council Bluffs. The plaintiff testified, though somewhat indefinitely, that he did not sign the application, and there is no positive evidence that he did. We are unable, however, to set what particular injury resulted to the defendant by the court's refusal to admit it in evidence. It was not

materially different from the agreement which was admitted in evidence.

All controverted questions of fact having been conclusively settled adversely to the appellant, and questions of law alone being subject to review here, we are of the opinion that the judgment of the Appellate Court must be affirmed.

Judgment affirmed.

CARTWRIGHT, J. (dissenting). It is the law of this state that a railroad corporation cannot limit its common-law liability by any stipulation or limitation expressed in the receipt given for the property. Section 33 of the act in relation to fencing and operating railroads, in force July 1, 1874 (Rev. St. 1874, c. 114), so provides. But a bill of lading may contain provisions and restrictions which, if assented to by the shipper, will amount to a contract, and the carrier may thereby limit its liability to such damage or loss as may arise on its own line. Chicago & Northwestern Railway Co. v. Simon, 160 Ill. 648, 43 N. E. 596; Illinois Central Railroad Co. v. Carter, 165 Ill. 570, 46 N. E. 374, 36 L. R. A. 527. A limitation of that character in a bill of lading is not binding on the shipper unless he knew of and assented to the limitation, and that is a question of fact, as to which the judgment of the Appellate Court is conclusive. Chicago & Alton Railroad Co. v. Davis, 159 Ill. 53, 42 N. E. 382, 50 Am. St. Rep. 143. The carrier must show that there was an express contract for the exemption, and, where the limitation is contained in a bill of lading not signed by the shipper, the burden is on the carrier to prove the contract by showing that the shipper assented to the limitation. Chicago & Northwestern Railway Co. v. Simon, supra. That is merely proving that there was a contract, and if the proof is made the limitation in the bill of lading will bind the shipper as effectually as though he had signed it. Boscowitz v. Adams Express Co., 93 Ill. 523, 34 Am. Rep. 191. In this case there was an express contract signed by the plaintiff and the agent of the defendant, restricting the defendant's liability to its own line; but it is held that the burden was upon the defendant to prove by other evidence that the plaintiff assented to the terms and conditions of the contract which he signed. I have not been able to discover any good reason for reversing the rule applied to other contracts and transactions, that one who has signed a contract is presumed to have understood and assented to its provisions. The validity of such a contract may be impeached. Black v. Wabash, St. Louis & Pacific Railway Co., 111 Ill. 351, 53 Am. Rep. 628. But I cannot agree with the conclusion that there is no presumption that the contract was assented to by the parties to it and that the fact of such assent must be proved by other evidence. The only case where such a rule was applied to a contract which appeared

from the facts stated to have been signed by the shipper is Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Patton, 203 Ill. 376, 67 N. E. 804, where it was said that, in the absence of evidence that the terms of the contract were assented to by the consignor, the presumption followed that he did not assent to the terms of such contract. I think that decision ought not to be followed in this case.

SCOTT, C. J. (dissenting). I concur in the views of Mr. Justice CARTWRIGHT, above expressed.

·ASSESSMENTS

OBJECTIONS-PROOF.

Where, in proceedings by a drainage district for the confirmation of a special assessment for new work, the petition, plans, and specifications filed by the district were sufficient to authorize the levying and collecting of an additional assessment under Act. May 29, 1879, § 37, as amended by Act June 30, 1885 (Hurd's Rev. St. 1905, c. 42), authorizing assessments for new work in drainage districts, the filing of objections did not compel the district to introduce testimony on the hearing; and if the proceedings were regular the assessment must be confirmed, unless the objectors offer testimony. 2. SAME-PERSONS ENTITLED TO OBJECT.

Objectors to the confirmation of a special assessment by a drainage district for new work cannot be heard on the objection that a right of way had not been obtained for constructing the proposed drains, unless they show that the property of some of them would thereby be taken or damaged, and they cannot be heard to object with respect to property in which they are not interested.

3. SAME-PROCEEDINGS.

Where, in proceedings for the confirmation of a special assessment by a drainage district for new work, the objectors showed that their land, not taken in the proceedings for the old work, would be taken or damaged by the proposed work, they were entitled to have the pepetitioner's plans and specifications show the actual condition of the old work and the new land to be taken.

4. SAME-TAKING OF LAND.

In proceedings for the confirmation of a special assessment by a drainage district for new work, it appeared that the new work contemplated that an old ditch should have its outlet extended some 2,300 feet. Held, that it must be assumed, in the absence of evidence of the profiles and plat showing the location of the original drains, that land not obtained at the time the old drains were constructed must be taken for the proposed outlet.

5. APPEAL-DECISIONS REVIEWABLE.

An order of the county court sustaining objections to the confirmation of a special assessment made by a drainage district for the construction of new work, and holding the petition for the assessment insufficient, is a final and appealable order, for it defeats the proceedings.

Appeal from Iroquois County Court; S. G. Bovie, Judge.

Proceedings by the Iroquois & Crescent Drainage District for the confirmation of a special assessment for the construction of

drains, in which A. D. Harroun and others appeared and presented objections. From an order sustaining the objections, the drainage district appeals. Affirmed.

Craugle & Vennum and Robert Doyle, for appellant. A. F. Goodyear, for appellee.

CARTER, J. This is an appeal from the order of the county court of Iroquois county sustaining the legal objections to the confirmation of a special assessment made by the commissioners of the Iroquois & Crescent Drainage District No. 1, under an act to provide for the construction of drains, ditches and levees for agricultural, sanitary, and mining purposes, in force May 29, 1879. Laws 1879, p. 120. After certain preliminary steps had been taken the county court of Iroquois county declared this district organized on June 19, 1884, and appointed three commissioners to lay out and construct the proposed work. At the February term, 1904, of the county court of that county, the commissioners of said district filed a petition under section 37 (page 131, as amended by Act June 30, 1885 [Hurd's Rev. St. 1905, c. 42]) of said act, stating briefly the history of the drainage district from 1884 to 1904, that it was necessary to clean out and enlarge, deepen, and widen the drain in said district, and attaching to said petition an itemized statement showing that the district had collected $12,238.37, and expended all of this except $654.76, which last amount was then on hand. Said commissioners also filed as a part of said petition a profile, plans, and specifications, with an estimate of the cost of the proposed new work, asking for an additional assessment of $7,000, and requested the court to direct them to make the additional assessment on the lands in said district for the purpose of constructing, deepening, and widening the principal drain aforesaid. The county court, on the 21st of March, 1904, entered an order finding the material facts of the petition correct, ordering the commissioners, not only to deepen and enlarge the principal drain, but to construct an outlet therefor which should extend about a half mile beyond the old outlet. The commissioners thereafter filed an assessment roll, assessing benefits against the lands in the district, and setting out that there were no damages against the property.

At the time set for hearing in the county court the landowners who are parties to this appeal filed some 18 objections to the confirmation of said assessment. On the hearing the petitioner introduced the assessment roll and certain files and records, not only in this proceeding, but also in the original proceeding. Several witnesses were also offered by the petitioner for the purpose of showing that the right of way had been obtained for the original main drain. The objectors insisted that the oral testimony was not competent. Objection as to some of the testimony was sustained, and as to some no

ruling was made. It is evident from the briefs of counsel, as well as from the record, that the main point considered and heard by the trial court is set up in objection 18, which reads: "The said drainage district has no right of way over the lands of objectors, or any tract thereof, for the construction of the proposed work, and no appropriation has been made to pay for the same, nor has any damages been assessed on account of the taking of objectors' lands."

Counsel for appellees insist that the order entered by the trial court sustaining all legal objections is not final, and therefore not such an order as can be appealed from. Our ruling on this question can perhaps be better understood after discussion of some of the other questions in the case. Counsel for appellant argues that the sustaining of the legal objections necessarily holds that the proceedings establishing the original drainage districts were invalid. We think he is mistaken in this conclusion. There is nothing in the record to indicate that the original proceedings are invalid. If the petition, plans, profile, and specifications filed by the petitioner asking for this last assessment were sufficient to authorize the levying and collecting of an additional assessment under section 37 of said act, then the filing of objections did not compel the appellant herein to introduce testimony on the hearing before the trial court. If the proceedings were regular on their face, it would be the duty of the trial court, when such objections came up for hearing, to confirm the assessment unless the objectors offered testimony. Briggs & Frith v. Union Drainage District, 140 Ill. 53, 29 N. E. 721; Lovell v. Sny Island Levee Drainage District, 159 Ill. 188, 42 N. E. 600; Trigger v. Drainage District, 193 Ill. 230, 61 N. E. 1114.

Counsel for appellees contend that there is nothing showing that the right of way was obtained for constructing the drains, and if the right of way has not been obtained there can be no legal confirmation of the assessment. There is nothing before this court to indicate that a right of way for the proposed enlargement of the old ditch and its extension has been obtained; but the objectors should not be heard on this objection unless they showed on the trial that some of said objector's property was actually taken or damaged. They could not be heard to object for property in which they were not in any way interested. While no specific objections were filed as to the question of definiteness in the plans, specifications, and profile, counsel assumed that this question could be raised and urged under objection 18, heretofore quoted, and the case was tried in the court below on this assumption. It is therefore entirely fair for this court to assume that this point was properly raised by the objections filed. When, under objection 18, it was urged by objectors, on the hearing, that sufficient right of way had not been obtained,

counsel did not insist that the proceedings were prima facie sufficient to justify confirmation, but practically admitted that they were not, by introducing certain files and records in the original proceedings, and also in attempting to show by oral testimony that right of way had been obtained, at the time the old ditch was located, sufficient in amount upon which to construct the proposed work. The old records introduced state that profiles and plat were made showing the exact location of the original drains, but these profiles and plat were not offered in evidence on this hearing. The only attempt to locate the proposed work was by three exhibits, A, B, and C, made a part of the last petition filed herein. Exhibit A is a plat of the drain, Exhibit B is a profile, and Exhibit C is a record of the survey purporting to explain the plat and profile and give further details as to the work. The surveyor who made the originals of these three exhibits states (Exhibit C) that the ditch is indicated on the plat (Exhibit A) by a broken red line. From an examination of Exhibit A it appears that the ditch is not indicated by a broken line, but by two continuous wavering lines. If any of the land of these objectors which was not taken in the old proceedings for the old ditch was actually to be taken or damaged for deepening and widening said old ditch, said objectors were entitled to have the petitioner's plans, profile, and specifications show the actual condition of the old ditch and the new land to be taken. It appears that the old ditch is to have its outlet extended some 2,300 feet. It must be assumed from this record that land not obtained at the time the old ditch was constructed must be taken for this outlet. The petition, with the annexed exhibits, does not fix with sufficient definiteness the location of the extension of this outlet, so that the objectors or other owners can tell with certainty just how and where it crosses their lands, and no scale is given on the plat and no courses and distances are furnished. Even one unskilled in such work can readily see that it cannot be ascertained within many feet as to where this outlet would actually be located. Neither is there anything shown on this record to indicate plainly whether any additional land would be required to be taken for deepening and widening the old ditch. Outside of the little village of Crescent City, Exhibit A lays off the ground across which the proposed ditch is to run in 40-acre tracts. This seemes to be the only definite measurement on the entire plat. The property owners are entitled to more certainty than this. The prima facie case of the petitioner was not so definite that the property owners along the line of the proposed work could tell whether or not it would take or damage land in which they were interested. The introduction of the files and records in the original proceedings, together with the oral testi

mony, even if it is all admissible, did not materially assist on these points.

An order is a final and appealable one in proceedings of this kind which defeats the entire proceedings, making it necessary to start the proceedings over again. The plans, profiles, and specifications are a part of the original petition in this hearing. The sustaining of the objections holding the petition indefinite and insufficient was, in effect, dismissing the petition.

The judgment of the county court will be affirmed.

Judgment affirmed.

(222 III. 421)

DALY V. SPILLER.

(Supreme Court of Illinois. Oct. 23, 1906.) 1. PLEDGES-PLEDGE OR SALE-CONSTRUCTION OF AGREEMENT.

Where insured in a life policy gave one who loaned him money a note for the amount of the loan, an absolute conveyance of the policy, and an assignment with a defeasance, by the terms of which insured was entitled to have the policy reassigned to him on payment of the note when due, the instruments showed that the policy was pledged, and not sold to the lender. [Ed. Note. For cases in point, see vol. 40, Cent. Dig. Pledges, §§ 8, 9.] 2. SAME REDEMPTION LACHES.

- Loss OF RIGHT

Where insured in a life policy pledged the same to secure a loan, and at the time of insured's death the lender had a bill pending alleging that insured assigned and pledged the policy, and praying for an accounting, and that the policy be sold to satisfy the lender's claim, and pending the suit the lender stated to one to whom insured had applied for money to pay the loan that the suit had been brought because insured did not pay, and the lender retained the note given by insured, the facts showed that the pledgee and pledgor had recognized the existence of a right to redeem, so that the right to do so could not be denied on the ground of laches, waiver, or abandonment.

[Ed. Note. For cases in point, see vol. 40, Cent. Dig. Pledges, § 124.]

Appeal from from Appellate Court, Fourth

District.

Interpleader by the Mutual Life Insurance Company of New York against Samuel Daly and E. M. Spiller, as administrator of the estate of Samuel W. Green, deceased. From a judgment of the Appellate Court (119 Ill. App. 272) affirming a decree of the circuit court, Daly appeals. Affirmed.

This is an appeal from a judgment of the Appellate Court for the Fourth District affirming a decree of the circuit court of Massac county. The following statement of facts is taken in great part from the opinion of the Appellate Court: The Mutual Life Insurance Company of New York filed a bill of interpleader in the circuit court of Massac county, and made appellant, Samuel Daly, and appellee, Ed. M. Spiller, administrator of the estate of Samuel W. Green, deceased, parties defendant. The purpose and prayer of the bill was to require the defendants to litigate their claims to $3,469.32,

the proceeds of a life policy issued by complainant upon the life of said Samuel W. Green, now deceased. Without formal decree requiring it, the defendants interpleaded and presented their respective claims to the court by answer and cross-bill. Upon issues joined and evidence heard, the court entered a decree fixing the rights of the parties in and to the fund, finding that Daly held the policy only as security for the payment of money, and awarding to him such sum as would reimburse him, and directing the payment of the balance to the administrator. Daly appealed, and the only question is whether he was the absolute owner of the policy or held it only as a pledge to secure money loaned and advanced by him. It appears from the evidence in the record that on November 7, 1890, appellee's intestate, Samuel W. Green, insured his life for $5,000 on the 10-year payment plan; the annual premium required being $213.50. He was then 25 years of age. In September, 1895, after he had paid five premiums, he applied to appellant, through an agent, for a loan of $800, for which he gave his promissory note, payable one year after date. As a part of the same transaction two other writings were executed and delivered into the hands of appellant, together with the note and insurance policy. One of these instruments purports to be an absolute conveyance of the policy. The other, signed by both Daly and Green, recites that the policy has been assigned to appellant for $800, for which the note was given, and provides that if the note is paid when due appellant will reassign the policy to Green. From the $800 Daly deducted $213.50 to pay the premium of 1895, $56 for one year's interest on the note in advance and $8 for expenses, and paid the balance to Green's agent. The last four premiums on the policy were paid by Daly, either directly or indirectly, and he was given credit for the same by the circuit court. The note was not paid when due, but on October 5, 1896, after it became due, Daly indorsed a payment of $100 on the note, and on November 2, 1897, he credited the interest to that date. The money to make these payments was borrowed at a bank by Green and Daly on their joint notes, which were afterwards paid by Daly. A number of other financial transactions relating to the borrowing of money and the payment of premiums were carried on between appellant and Green and continued until a short time before Green's death. As late as July 1, 1900, appellant signed and delivered to Green this statement in writing: "This day I agree to surrender to Samuel W. Green policy No. 424,533, life insurance, if paid by the company and Samuel Green to me in sixty days from date the sum of $1,700. If not paid as above stated this agreement to be null and void." The sum mentioned in that agreement was about $300 less than the amount