in the case of Alair v. The Railroad, Mitchell, J., in speaking for the court, said: "It makes no difference whether the valuation expressed in the contract is one previously made by the shipper on request of the carrier, or one inserted in the contract by the carrier without being named by the shipper but acquiesced in by him. In either case it becomes a part of the contract on which the minds of the parties meet and on which they act." Where, however, the valuation is written upon the receipt in such a manner that it cannot properly be said to form a part of the contract, as for instance, where it is written upon the back, it will be considered as a notice only and as such not conclusive on the owner unless it can be shown that it was known and assented to by him when he accepted the receipt.5

If the wording of the contract clearly indicates an intention to fix a value on the goods, parol evidence will, of course, be inadmissible to vary or explain its terms. But if the wording of the contract is not clear, or the receipt, although clearly expressing a valuation, is claimed to have been accepted under circumstances such that the owner's assent to its terms cannot reasonably be presumed, the contract will be viewed in the light of the situation of the parties at the time it was made, and extrinsic evidence of the circumstances surrounding its execution. will be admissible for the purpose of showing whether a bona fide valuation agreement was made. And if from such evidence it should appear that a bona fide agreement fixing the value of

go & Co., 118 Cal. 683, 50 Pac. Rep. 41, 88 Am. St. Rep. 949, 56 Rep. 847. See ante § 408. L R. A. 246.

4. 53 Minn. 160, 54 N. W. Rep. 1072, 39 Am. St. Rep. 588, 19 L. R. A 764. See also, Normile v. R. & N. Co., 41 Or. 177, 69 Pac. Rep. 928. 5. See ante, § 415; Doyle v. Railroad Co., 126 Fed. 841.

6. O'Malley v. The Railway, 86 Minn. 580, 90 N. W. Rep. 974; Power's Mercantile Co. v. Wells, Fargo & Co., 93 Minn. 143, 100 N. W. Rep. 735; Ullman v. The Railway, 112 Wis. 168, 88 N. W.

The construction of contracts of this nature and the obligations arising therefrom, and what the parties intended by the language employed, must, when the same is clear and unambiguous, be determined from the writing itself; and extrinsic evidence is inadmissible to alter or vary its terms. But when it is claimed that the limitations inserted therein were not fairly inserted, or that the

the goods was not in fact made, the owner, in case of loss, will be entitled to recover the full value of the goods. So if doubt arise as to the meaning of the terms employed, the doubt will be resolved against the carrier, it being well settled that such contracts will be construed most strongly against him.7

Sec. 429. Same subject-Measure of recovery where loss is only partial.-Where the parties have agreed that in the event of loss the liability of the carrier shall not exceed a certain sum at which it is stipulated the goods are valued, the question arises as to the extent of the carrier's liability where there has been only a partial loss of the goods. While it is held by some courts that the owner of the goods will be entitled to recover an amount equal to the actual loss sustained, providing such amount is not greater than the sum at which the goods are valued, the better rule would seem to be that he should be confined in his recovery to an amount equal to that proportion of the real loss that the declared value of the goods bears to their actual value as it existed before the loss occurred. Where the

carrier did not act in good faith, evidence of the circumstances surrounding its execution is admissible, not to contradict or vary its express terms, but to show whether it was fairly and honestly made in respect to the particular subject. Thus, where it appeared that the contract containing a valuation was signed at ten o'clock at night, just before the departure of the train on which the goods were to go, that no previous negotiations relative to what the contract should contain were had, and that the sum stated in the contract was inserted by the agent in accordance with his own estimate of similar kinds of goods, the shipper not having been consulted on the subject, nor informed that a valuation was necessary to estimate freight

charges, it was held that evidence of the circumstances surrounding its execution was properly admissible for the purpose of showing whether or not it had been fairly and understandingly entered into. O'Malley v. Railway Co., supra.

7. Black v. Transportation Co., 55 Wis. 319; Gardner v. Railway Co., 127 N. Car. 293, 37 S. E. Rep. 328.

8. Brown v. Steamship Co., 147 Mass. 58, 16 N. E. Rep. 717; Starnes v. Railroad Co., 91 Tenn. 516, 19 S. W. Rep. 675; Nelson r. Railway Co., 28 Mont. 297, 72 Pac. Rep. 642; Goodman v. Railway Co., 71 Mo. App. 460.

9. United States Express Co. v. Joyce, Ind., 72 N. E. Rep. 865, reversing, 69 N. E. Rep. 1015.

parties have stipulated that the carrier's liability in case of loss shall not exceed the sum at which the goods are valued, it is hardly reasonable to suppose that it was thereby intended that the carrier, in the event of only a partial loss, should be liable for an amount which might be equal to the sum fixed as the value of the goods, thus making it possible for the same amount to be recovered where the loss was only partial as would be recoverable where the loss was total. The owner, therefore, is held not to be estopped by the statement as to value from showing what the real value of the goods was for the purpose of arriving at the correct proportion.10

Sec. 430. Same subject-Contracts limiting recovery to value of goods at time and place of shipment.-The question whether the carrier may lawfully stipulate with the owner of the goods that in case of loss the value of the goods at the time and place of shipment shall be the measure of recovery has several times come before the courts, and conclusions not in harmony have been reached. It is contended on the one hand that if the parties may lawfully limit the amount to be recovered in case of loss to the sum at which the goods are valued, there can be no good reason why a standard may not be fixed by which such value shall be determined. On the other hand, it is said that the usual measure of damages is the market value of the goods as they should have arrived at the place of destination, and that a contract which has for its purpose the establishment of some other time and place must necessarily amount to a limitation upon the carrier's liability and be inoperative where the carrier's negligence has been instrumental in causing the loss.11

10. United States Express Co. v. Joyce, supra.

11. Ruppel v. The Railway, 167 Penn. St. 166, 31 Atl. Rep. 478, 46 Am. St. Rep. 666; Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. Rep. 834; Railway Co. r. D'Arcais, 27 Tex. Civ. App. 57, 64 S. W. Rep. 813; Railroad Co. v. Bogard, 78 Miss. 11, 27 So. Rep. 879.

Without a consideration, usually a reduced rate, a clause in the contract of shipment fixing the damage in case of loss at the value of the goods at time and place of shipment instead of destination is invalid, since the usual legal liability would be the price of the goods at destination in their condition as they should have ar

The former rule is sustained by the weight of authority, and the value as established at the time and place of shipment will ordinarily under such a stipulation be conclusive on the owner of the goods.12

Sec. 431. Same subject-Contracts limiting liability to fixed amount without regard to value. From what has already been said upon the subject, it will be apparent that an agreement limiting the amount for which the carrier will be liable in case of loss must, in order to be conclusive on the owner, be based upon the value of the goods. If, therefore, the contract should provide that in case of loss the carrier's liability shall not exceed a rived. Railroad Co. v. Coolidge, any loss or damage for which the Ark. 83 S. W. Rep. 333, carrier would be liable should be 67 L. R. A. 555, citing Hutchinson computed at the value of the propon Carr. erty at the time and place of shipment was unjust, unreasonable, and contrary to public policy in that the freight charges paid or incurred by the consignee were ignored as an element of damages. But in Davis v. Railway Co., 70 Minn. 37, 72 N. W. Rep. 823, it was considered by the same court that there was really nothing in such a condition excluding from a computation of damages charges for transportation paid or incurred by or on behalf of the consignee, and that when so construed, the contract was not on its face unreasonable or opposed to public policy. But a condition in the contract that the value of the property at the time and place of shipment shall govern the settlement in which the amount claimed shall not exceed, for a stallion or jack, $200, for a horse or mule, $125, was held not to constitute a bona fide estimate or valuation. Central, etc., Ry. Co. v. Hall, Ga. 52 S. E. Rep. 679.

12. Squire v. The Railroad, 98 Mass. 239, 93 Am. Dec. 162; Railroad Co. v. Oden, 80 Ala. 38; York Co. v. Railroad Co., 3 Wall. 107; Pearce v. Steamship Co., 24 Fed. 285; The Lydian Monarch, 23 Fed. 298; The Hadji, 18 Fed. 459; Pierce v. Railroad Co., 120 Cal. 156, 47 Pac. Rep. 874, 40 L. R. A. 350, 354; s. c. 52 Pac. Rep. 302; Railway Co. v. Harwell, 91 Ala. 340, 8 So. Rep. 649; Zouch v. Railway Co., 36 W. Va. 524, 15 S. E Rep. 185, 17 L. R. A. 116; Railroad Co. v. Phillipson, (Tex. Civ. App.) 39 S. W. Rep. 958; Railroad Co. v. Parish, 18 Tex. Civ. App. 130, 43 S. W. Rep. 1066; Tibbitts v. Railroad Co., 49 Ill. App. 567; Rogan v. Railway Co., 51 Mo. App. 665; 101 Live Stock Co. v. Railroad Co. 100 Mo. App. 674, 75 S. W. Rep. 782; Railway Co. v. Jones, 132 Ala. 437, 31 So. Rep. 501. In Shea v. Railway Co., 63 Minn. 228, 65 N. W. Rep. 458, it was held that a stipulation in a shipping contract providing that the amount of

certain sum, no reference being made to the value of the goods, and a loss occurs through some misconduct on the part of the carrier, the contract will be considered as a mere attempt to secure a partial exemption from liability for the consequences of negligence, and of no avail in relieving the carrier from liability for the full value of the goods.13

Sec. 432. Same subject-Effect of delivery, after notice given to stop goods in transit, upon agreement limiting recovery to stated value of goods-Conversion.-Although it is provided in the contract of shipment that the carrier will not be liable in case of loss for more than a certain sum at which it is stipulated the goods are valued, if the owner should exercise his right of stopping the goods while in transit, the law will at once create a new relation between the parties which is independent of the contract of shipment; and if the carrier should negligently make a delivery of the goods after the owner has thus exercised his right of stopping them in transit, the agreement limiting recovery to their stipulated value will be inoperative, and the owner may recover to the full extent of his actual loss.14

So where the carrier has converted the goods, he will be deemed to have thereby abandoned the contract of shipment, and he cannot thereafter insist on a stipulation that his liability

13. Abrams v. The Railway, 87 Wis. 485, 58 N. W. Rep. 780, 41 Am. St. Rep. 55; Railway Co. v. Murphy, 113 Ga. 514, 38 S. E. Rep. 970, 53 L. R. A. 720; Everett v. Railroad Co., 138 N. Car. 68, 50 S. E. Rep. 557, citing Hutchinson on Carr.; Railway Co. v. Witty, 32 Neb. 275, 49 N. W. Rep. 183, 29 Am. St. Rep. 436; Wells, Fargo & Co. v. Bell, 65 Ohio St. 408, 62 N. E Rep. 1035; Baughman v. Railroad Co., 14 Ky. Law Rep. 268; Railroad Co. v. Frazee, 24 Ky. Law Rep. 1273, 71 S. W. Rep. 437; Harned v. Railway Co., 51 Mo. App.

482; Railroad Co. v. Keener, 93 Ga. 8C8, 21 S. E. Rep. 287, 44 Am. St. Rep. 197; Railway Co. v. Johnson, King & Co., 121 Ga. 231, 48 S. E. Rep. 807; Eells v. Railway Co., 52 Fed. 903; Railroad Co. v. Lockwood, 84 U. S. (17 Wall), 357, 21 L. Ed. 627; Schwarzchild v. Steamship Co., 74 Fed. 257; The Kensington, 183 U. S. 263, 22 Sup. Ct. Rep. 102, 46 L. Ed. 190, reversing, 94 Fed. 885, 36 C. C. A. 533. See ante, § 425.

14. Rosenthal v. Weir, 170 N. Y. 148, 63 N. E. Rep. 65, 57 L. R. A. 527.