where the proof fails to come up to the standard required, wi!! Sec. 457. (§ 265.) Power of an agent to bind the owner 7. Cox v. The Railroad, 170 road, 137 N. Y. 460, 33 N. E. Rep. 8. 48 N. Y. 498. See also, Wal- 642; Root v. The Railroad, 83 Hun Railroad, the plaintiff, who had become the purchaser of hogs, sent a drover to take care of them and to transport them by railroad. The ticket-master of the road gave the drover a pass, and handed to him at the same time a written contract to be signed by him with the name of the plaintiff, which was done by the drover. This contract limited the liability of the company in several important particulars, and, among other things, exempted it from liability for injury to the hogs by suffocation. A number of them were suffocated before reaching their destination, and the plaintiff brought suit to recover their value; but it was held that the contract was binding upon him and that the company was not liable. In York Company v. Central Railroad,10 the agent of the plaintiffs accepted a bill of lading relieving the defendant carrier from liability for loss by fire. The goods were destroyed whilst in transit, by fire, and it was held that the plaintiffs could not recover, the stipulation in the receipt excepting liability for loss from that cause being binding 9. 98 Mass. 239. A contract between the agent of the owner of the goods and the carrier is not affected by a secret limitation of the agent's authority to agree to terms of limitation. Smith v. Robinson Bros., Lumber Co., 34 N. Y. Supp. 518. In California Powder Works v. The Railroad, 113 Cal. 329, 45 Pac. Rep. 691, 36 L. R. A. 648, the plain tiff, a powder manufacturer, em ployed at different times a common drayman to haul quantities of powder from a certain depot to the depot of the defendant. It was cus tomary for the drayman, when delivering the powder to the defend ant's agent, to sign a form of ship ping order in which terms were inserted to the effect that the carrier would not be liable for loss by fire from any cause. The plain tiff had no knowledge of the drayman's practice of signing its name to the shipping orders since the orders, after being signed, were retained by the carrier; nor had the drayman any actual authority to do so. During the transit of a quantity of powder which the defendant had accepted under a shipping order signed in the usual manner by the drayman, the powder exploded, entailing a loss of the entire shipment. The plaintiff contended that the drayman had no actual or implied authority to bind it by signing its name to a contract to the terms of which it had never agreed. It was held that the drayman, having had authority to ship the powder for the plaintiff, had a general and implied authority to agree with the carrier with respect to the terms upon which the goods were to be shipped, and that the plaintiff was without remedy. 10. 3 Wall. 107. upon them.11 And in Armstrong v. Railway Company,12 it appeared that the plaintiff's agent, who was sent by the shipper of live stock to care for the stock during transportation, entered into a contract with the connecting carrier for the carriage of the stock to destination. The contract contained a clause limiting the time within which a written claim for damage or loss should be filed with the carrier. The stock was injured while on the journey but no claim was filed within the time agreed upon. It was held that the plaintiff was bound by the act of his agent and was accordingly precluded from the right to maintain an action. Sec. 458. (§ 266.) Same subject. And not only has the agent for shipment the authority to deliver the goods and to accept the carrier's receipt, but whenever it becomes his duty to send or to forward them, it is his duty also to accept such terms of the carrier as may not be unreasonable, if necessary to procure the acceptance of the goods by him; and if he be a paid agent to have them carried, he would become responsible for any damage which might occur to them in consequence of his failure, and it would be no defense that he had no authority to deliver the goods upon such terms. In Rawson v. Holland13 11. Christenson v. Am. Ex. Co., 15 Minn. 270; Briggs v. Railroad, 6 Allen, 246; Mills v. Railroad, 45 N. Y. 622; Shelton v. Merchants' D. T. Co., 59 id. 258; Barnett v. Railway Co., 5 Hurl. & Nor. 604; Moriarty v. Harnden's Ex., 1 Daly, 227; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344; Robinson v. Merchants' Des. T. Co., 45 Iowa, 470. Upon question of agent's authority to bind the owner by contract limiting the carrier's liability, see Southern Pac. Ry. Co. v. Maddox, 75 Tex. 300. 12. 53 Minn. 183, 54 N. W. Rep. 1059, citing Hutchinson on Carr. The general rule of agency that the principal who adopts the act of one professing to act for him must adopt it in toto, and will not be permitted to claim the benefits therefrom and at the same time repudiate the burdens thereof, ap plies to a shipping contract containing limitations of liability which has been entered into by an agent and adopted by the principal. Adams Express Co. v. Carnahan, 29 Ind. App. 606, 63 N. E. Rep. 245, 64 N. E. Rep. 647, 94 Am. St. Rep. 279, citing Hutchinson on Carr. 13. 59 N. Y. 611. The general course of business cf forwarding goods when the ship of the signer of a through the carrier, an express company, transported the goods to the end of its own route, but failed to offer or deliver them to the next succeeding carrier on the route to destination, because it required the express company, as a condition precedent to its acceptance of the goods, to sign a contract containing various restrictions and limitations of its liability. This the express company declined to do, but stored the goods in its warehouse and notified their owners of the fact and awaited instructions from them. Before any such instructions were received, and after the goods had remained thus stored for about twenty days, they were consumed by fire. The carrier was held liable because, having contracted to forward the goods from the end of its own route, and being therefore the agent of the owners for that purpose, it had the power to sign the contract, and it was its duty to have done so and forwarded the goods. The detention was said to have been inexcusable, and the loss having occurred from the fault of the express company, it was responsible, although in its receipt for the goods it had contracted for exemption from liability for loss by fire. Sec. 459. Same subject-How where carrier has notice that authority of agent is restricted. Where, however, the carrier has notice that the agent is without authority to bind the owner by a contract containing limitations of liability, or where a contract has been previously entered into between the owner and the carrier without reference to terms of limitation, the bill of lading does not go all the way to the port of ultimate destination, of which fact the through bill of lading gives notice, and the manifest necessity of the case that the through undertaker should tranship under such a contract as he can reasonably make, justifies the presumption of the requisite authority, in the absence of any want of notice thereof brought to the knowledge of the second carrier, to enter into such a contract. If, therefore, the sec ond contract contains exemptions from liability not contained in the through contract, and loss occur on the route of the second carrier from one of such excepted causes, the shipper will not be permitted to question the authority of the first carrier to enter into the second contract with the connecting carrier and must seek his remedy against the first carrier under the through contract. The St. Hubert, 107 Fed. 727, 46 C. C. A. 603, affirming 102 Fed. 362. acceptance of a receipt by the agent, or the signing by him of a bill of lading, cannot operate to bind the owner to terms of limitation which may be included in such receipt or bill of lading.14 But if the owner, with full knowledge of the facts, adopts the act of his agent, such conduct will be tantamount to an original authority to the agent to agree to the terms proposed, and the owner will be concluded by the agreement as made by the agent. In Russell v. The Railroad,15 it appeared that a storage company, in accordance with the plaintiff's directions, delivered to the defendant for transportation a box containing household goods of the value of $300. The storage company made out a freight bill on one of the printed forms of the defendant company and inserted therein the directions as to shipment. No mention was made in the freight bill of sending the box forward under a contract limiting the defendant's liability. The storage company gave the box and freight bill to their cartman for delivery to the defendant and instructed him to pay the freight charges and secure a copy of the bill of lading. No directions were given to the cartman in respect to the rate of freight he was to pay. On receipt of the box by the defendant, it issued to the cartman a bill of lading which contained a clause limiting its liability in case of loss to $5.00 for each hundred pounds, and the reduced rate of freight usually charged under such contracts was paid by the cartman. The box was lost, and suit being brought to recover its full value, the defendant relied upon. the contract as evidenced by the bill of lading delivered to the cartman. It was held that while ordinarily where a person is intrusted with goods for the purpose of delivering them to a carrier for shipment, such person is presumed to have authority to enter into an agreement limiting the carrier's liability, if the carrier knows that his authority is restricted, the acceptance by 14. Russell v. The Railroad, 70 N. J. Law 808, 59 Atl. Rep. 150, 67 L. R. A. 433; Jennings v. The Railway, 127 N. Y. 438, 28 N. E. Rep. 394, affirming 52 Hun, 227, 5 N. Y. Supp. 140; Railway Co. v. See 15. 70 N. J. Law 808, 59 Atl. Rep. 150, 67 L. R. A. 433. also, Hailparn v. Joy S. S. 99 N. Y. Supp. 464. Co., |