ments of the petition, and also evidence tending to prove the allegations of the answer, and the only ground relied upon for a reversal of the judgment is the action of the court in refusing the following instructions asked by defendant:

1. If the cattle referred to in the pleadings and testimony were actually loaded into the cars of plaintiff, as stated in the answer, before the alleged written contract was signed, and were received by the agent of the company with the previous verbal understanding as to the terms of shipment, then the rights and liabilities of the parties to said shipment were fixed, and the liabilities of plaintiff thereunder as common carriers were not modified or changed by said written contract.

2. The liability of plaintiff in this case is that of a common carrier, and not a forwarder merely, and the stipulation to that effect in the alleged written contract, is void.

3. The cause of action set up by the defendant in his answer and counter-claim is founded on the alleged wrongful, willful and negligent acts and conduct of plaintiff, and not on the written contract set up in the petition.

4. If the defendant had not the time before the alleged departure of the train after the cattle were loaded, to examine the printed and written conditions of the written contract set up in the petition, and if defendant was leaving on said train with his cattle, to look after and care for same, then any conditions or stipulations in said contract inconsistent with plaintiff's general liability as a common carrier, are void.

While it has been held that a common carrier cannot stipulate against liability for damages resulting from and occasioned by his negligence, it has also been held, he can by special contract with the shipper, limit his liability. Ketchum v. American Ex. Co., 52 Mo. 390; Read v. St. Louis, K. C. & N. Ry. Co.. 60 Mo. 199; Rice v. Kansas Pac. Ry: Co., 63 Mo. 314; Sturgeon v. St. Louis, K. C. & N. Ry. Co., 65 Mo. 569. It was held in the case of O'Bryan v. Kinney, 74 Mo. 125, that "as a general rule, when goods are delivered to a carrier for transportation and a bill of lading or receipt is delivered to the shipper, he is bound to examine and ascertain its contents, and if he accepts it without objection, he is bound by its terms, and resort cannot be had to prior parol negotiations to vary them. That he, the shipper, did not read the bill of lading or know its contents, makes no difference; he might have read it and it was his duty to do so, and in the absence of fraud or mistake, the writing must be taken as the sole evidence of the final agreement of the parties." The same principle is announced in the case of Mulligan v. Ill. Cent. Ry. Co., 36 fowa, 181, where the terms of a bill of lading were sought to be evaded on the ground that the shipper did not know its contents. It was held: "It not appearing that any fraud or imposition was prac

ticed, or that any mistake intervened, the plaintiff must be conclusively presumed to have been acquainted with its contents, and if he did not do so, the consequences of his folly and negligence rest upon himself. Courts cannot undertake to relieve parties from the effects of such inattention and want of care. If once they should enter this doubtful domain, it is impossible to foresee to what lengths their interference might be pressed, or of what limit it would finally admit." The same doctrine is announced in the cases of McMillan v. M. S. & N. I. R. R. Co., 16 Mich. 79; Grace v. Adams, 100 Mass. 505; s. c., 1 Am. Rep. 131.

Giving force and effect to the above principles, the instructions numbered one and four were properly refused.

Instruction number two was properly refused, because it submitted a question of law and not of fact. Whether the liability of plaintiff was that of a common carrier as contradistinguished from that of a forwarder was determinable by the facts, and the facts upon which the liability of plaintiff as a common carrier were predicated should have been stated, so that the triers of the fact could determine whether such facts had been established by the evidence. It makes no difference in this respect that the cause was tried by the court without the intervention of a jury, and this has been so held in the case of Cape Girardeau Co. v. Harbison, 58 Mo. 90.

As to the third instruction, while it states correctly that the cause of action set up in defendant's answer by way of counterclaim, is founded upon the alleged negligence of plaintiff, it is nevertheless true that under the terms of the contract relied upon by plaintiff, defendant was bound to give notice in writing of his claim for damages to the general freight agent within five days after the cattle were unloaded, and it is not pretended that this was done, or any reason shown why it was not done, and it, therefore, follows that no injury could have resulted to defendant by refusing an instruction which, when considered in connection with the pleadings and evidence, was a mere abstraction.

Judgment affirmed, in which all concur, except Judge Ray, who was of counsel in the case.

See Hopkins v. St. Louis & San Francisco Ry. Co., and note, infra.

HOPKINS

v.

ST. LOUIS AND SAN FRANCISCO RY. Co.

(Advance Case, Kansas. 1883.)

A. entered into a verbal contract with a railroad company in regard to the carriage of live stock whereby the latter agreed to allow him the usual rebates in freight. Subsequently, upon the shipment of each car load of live stock, a bill of lading was delivered containing no stipulations for such rebates. In an action by A. against the railroad company to recover the amount of the rebates, held, that the plaintiff could not establish by parol evidence the fact that it was the intention of the parties that the bill of lading should operate only as regards the liability of the company, and that as to all other matters the written contracts were subject to and controlled by the previous parol agreement. Held, therefore, that plaintiff was not entitled to recover the rebates.

THE plaintiff with leave of the court, filed his amended bill of particulars against the St. Louis & San Francisco Ry. Co., alleging that the latter company is justly indebted to the plaintiff in the sum of $270.

That said sum is and was at the commencement of this action due and wholly unpaid; that during all of the two years last past said defendant was and now is operating, controlling and managing a line of railroad from the city of Wichita, in the State of Kansas, in and through this county of Wilson, to the city of St. Louis, in the State of Missouri; that during all said time said defendant was and now is engaged in the business of common carriers, both of passengers and of live stock of all kinds, and other freights, using said line of railroads and the rolling stock thereto belonging for that purpose. That during a portion of said time, said plaintiff was engaged in the business of buying hogs and cattle, and shipping the same from said county of Wilson to said city of St. Louis, in the cars of said defendant, and over said defendant's line of railroad aforesaid which shipments amounted to twenty-seven car loads of stock aforesaid; that prior to the shipping of said twenty-seven car loads as aforesaid, the said plaintiff entered into an agreement and contract with said defendant, by the terms of which agreement said defendant was to carry said plaintiff's stock at as low rates and for the same price per car that defendant charged and actually received from any other person or persons for like services; that plaintiff was to have and receive the same rebates and drawbacks that the defendant gave to any other person or shipper, or was allowed to any person for like shipments over said line of railroad during the time and times said

plaintiff was making his shipments. Plaintiff avers that said defendant violated said agreement in this: That said defendant charged him, the said plaintiff, the same rate per car, which rate was full schedule rates; that said defendant pretended to charge other and like shippers for same services, but which was in fact ten dollars on the car more than that charged to and received from other and like shippers; that is to say that said plaintiff paid $60 from Neodesha in this county and $65 from Fredonia in this county to St. Louis per car, when in truth and in fact said defendant charged and received from other and like shippers only $50 from said Neodesha, and $55 from said Fredonia to said city of St. Louis per car; that said difference of ten dollars on the car was made by said defendant paying and causing to be paid to said shippers a rebate and drawback of ten dollars on a car; that said plaintiff presented to said defendant his claim for drawbacks and rebates in the manner and form and at the place designated and required by said defendant, and in the manner and form and at the place done by other and like shippers for similar and like services, but that said defendant with the intent to cheat and defraud the plaintiff, did then and there, and has ever since continued, failed and refused to pay and allow said rebate and drawback or any part thereof, though said plaintiff had shipped all of said twenty-seven car loads of stock as aforesaid, and had paid to said defendant said full rate of $60 and $65 all of which said defendant then and there well knew. Plaintiff says that at all time and times while engaged in buying and shipping all of said twenty-seven car loads of stock, as aforesaid, he relied upon the statements made by said defendant concerning the rates to be charged by said defendant and upon the agreement and contract as above set forth. Plaintiff therefore prays judgment against said defendant for the sum of two hundred and seventy ($270) dollars and costs.

The defendant made answer as follows:

Comes now the defendant by its attorney and having obtained leave therefore for his answer to the bill of particulars, says that it denies each and every allegation in said bill of particulars con

tained.

For a further defence and answer defendant alleges that prior to receiving each car of stock mentioned in said bill of particulars, it, the St. Louis & San Francisco Ry. Co., entered into a contract in writing with the plaintiff by the terms of which the said defendant undertook to ship each car of stock mentioned at the sum of $50 for each car load, and it was further stipulated in each of said contracts that in consideration of said rate being a less sum than the regular rates charged from said points to the city of St. Louis, the said plaintiff assumed all risk in shipping stock.

To this, plaintiff filed the following reply:

Now comes the plaintiff, and for answer and reply says that he

did, at the time of shipping each car load of stock, enter into a written contract with said defendant in manner and form as did other and like shippers; that a copy of one of said contracts is hereto annexed marked "A" and made a part hereof; that all the other written contracts made between said plaintiff and defendant at the time of shipping were similar in form, save as to dates, number of cars, and place of shipment, and price per car, which place of shipment was sometimes at Fredonia, and in that case the price per car inserted in said contract was $65 per car. Plaintiff says that each of said written contracts only operated, and it was the understanding of the parties thereto, that it should operate, to fix the responsibility of the defendant as to any damages said plaintiff might sustain on the stock so shipped; that the same consideration was set forth in the written contracts of said other and like shippers, and as it is the custom and practice of said defendant to do and make in all cases of like shipments; that, notwithstanding said written contracts, said defendants paid to other and like shippers a rebate and drawback of ten dollars per car; that at the time said plaintiff entered into each and all said written contracts, he, the said plaintiff, relying upon the prior agreement understood and believed that he would and should be entitled to receive the usual rebates and drawbacks allowed to other and like shippers.

RULES AND REGULATIONS FOR THE TRANSPORTATION OF LIVE STOCK.

Live stock of all kinds at the following estimated weights, first class rates: One horse, mule, or horned animal, 2000 lbs.; two horses, mules, or horned animals, 3500 lbs.; three horses, mules, or horned animals, 5000 lbs. ; each additional animal to be rated at 1000 lbs.; stallions 4000 lbs.; calves and sheep, one, two hundred pounds, but in no case less than 50 cents; pigs and store hogs actual weight.

In case the owner or consignor agrees to save the St. Louis & San Francisco Ry. Co. from liability for any or all of the causes enumerated in the following contract, and also agrees to load, un