Opinion of the court.

If you confine it to the transit between Columbus and Evansville, then you give, for that part of the road, an exemption greater than that for the other; that other which it is plain from other provisions was the part more particularly meant to be guarded. The construction is, perhaps, one of a balance of difficulties. The difficulties of the construction sought to be set up by the other side are more weighty than those of the one sought to be maintained by us.

Mr. Justice HUNT delivered the opinion of the court. Had the bill of lading contained nothing more than the terms and clauses in the part of it which is before the redletter clause, the argument made in behalf of the Androscoggin Mills would be a strong one. We must, however, examine the whole contract, and construe and give effect to all its provisions.

This bill of lading, in the first place, is a contract covering the cotton during the entire period of its transmission from Columbus to Boston, and over every part of the route. Not only is this the general law of the bill of lading, from the fact that Columbus was the place of receiving, and Boston the place of delivering, the cotton, but this bill of lading is emphatic in its declaration that such is its character. It is headed, "Great through fast route to all points north and east," &c. It says: "This reliable through line makes the shipment of cotton and tobacco a specialty;" "contract for a through rate;" and again, "Through rate $10.25 per bale from Columbus to Boston." It is evident, therefore, that the cotton is the subject of the contract of carriage not only from Evansville to Boston, to which the plaintiff's in error would confine it, but from Columbus to Evansville as well. Bearing this in mind, it will be observed in the second place, that the contract separates itself into two parts—one, limiting the liability of the railroad company from Evansville to Boston, the other governing its liability generally. Thus the portion already referred to as relied upon by the defendants in error, undoubtedly was intended to be limited. in its range. The liability under it and the exemption also,

Opinion of the court.

is expressly made dependent on the arrival of the goods at Evansville, and until they have so arrived, neither the liability nor the exemption commences. We can, however, be asked to hold that the liability or the exemption on a portion of the route is entirely omitted from the terms of a bill of lading which provides for transportation over the whole route, and where the compensation is specified as covering the whole route, only where it so appears by the plainest language. No doubt terms might be used in a bill of lading for the transportation of cotton from Mississippi to Massachusetts, by which exemptions from liability for loss by fire while in a railroad car from Evansville northward should be made, and no such exemptions should be made while the cotton was on the deck of a steamboat. We should not, however, expect to find such provisions, and we should require them to be clearly expressed.

All of the first general paragraph of the bill of lading may fairly be said to relate to the conditions upon which the transportation from Evansville northward shall be made. In its general terms we have already considered that paragraph.

A new subject, however, is taken up in the next sentence. It is not only the beginning of another paragraph, with the usual space between it and what precedes it, but it is printed in red ink, while what precedes it is in ordinary black type. Its importance in the opinion of the shippers is thus manifested. Attention is called to it as involving important provisions. Dropping the reference to Evansville, and the arrival of the goods there, it uses the most general terms: "The Evansville and Crawfordsville Railroad Company will not be liable for loss or damage by fire, from any cause whatever.” It is an evident addition to the contract as expressed in the first clause. The railroad company there define the terms and conditions upon which they will be liable after the property has reached Evansville. While on the passage from Evansville northward, non-liability for loss by fire is twice stipulated for,—once while in depots or places of transhipments, and again in general terms,-the evident object and

Opinion of the court.

intent of the first clanse is to affect this part of the route only. A new branch of the contract is then taken up, and the difference is intended to be made plain to the eye as well as the understanding. In the red-ink clause they use terms applicable to the entire contract of shipment, viz.: They "will not be liable for loss or damage by fire, from any cause whatever." No language of limitation is used. It is as if they had said, "Should damage by fire occur to this cotton during any part of the route, and from any cause whatever, this company will not be liable.”

It is quite unreasonable to suppose that the company here intended to guard themselves against a liability for which they had twice already stipulated that they should not be liable, to wit, of loss by fire after the cotton had reached Evansville. The clause in red was intended to cover the whole contract. Wherever, whenever, or however they would by law be liable for a loss by fire, from that liability they intended to relieve themselves. The exemption was intended to be as broad as was the original liability.

"All

A careful reading of the bill of lading shows that the redink clause not only, but all that follows it, must have been understood by the parties to cover the whole route, and not to be limited to a part of the distance only. Thus, after providing an exemption from liability for loss by fire from any cause whatever, the bill of lading goes on to say, property shipped on this contract will be subject to the expense of necessary repairs and remarking." Can it be doubted that if the sacks of this cotton had required repairing or remarking from causes occurring before it reached Evansville, that it would have been a proper item of expense under this clause? "In the event of loss or damage under the provisions of this agreement (it proceeds) the value or cost at the point of shipment shall govern the settlement of the same." No one can doubt that the value at Columbus will govern the amount of a recovery under this clause. And again, the clause, "Said property to be forwarded immediately after its arrival at Evansville, . . . and to be delivered at Boston upon the payment of freight and charges,"

Syllabus.

is, by its very terms, applicable to goods not yet at Evansville, when the contract takes effect.

We are of opinion that the argument of the defendants in error, upon which the judgment below was based, that the exemption from liability by fire was limited to fire occurring after the cotton had been received at and shipped from Evansville, was erroneous. The exemption covers the entire

route.

JUDGMENT REVERSED, and judgment upon the demurrer ordered in favor of

THE PLAINTIFFS IN ERror.

BAILEY V. RAILROAD COMPANY.

1. In December, 1868, a railroad company, which was in existence in 1862, and before, but which by its charter was limited to 10 per cent. dividends on its capital, now all taken, reciting that it had "hitherto expended of its earnings for the purpose of constructing and equipping its road, and in the purchase of real estate and other properties with a view to the increase of its traffic, moneys equal to 80 per cent. of its capital," and reciting further that the stockholders were "entitled to evidence of such expenditure and to reimbursement of the same at some convenient future period," resolved to give them and did give them in proportion to the amount of stock held by them respectively, certificates which it called "interest certificates;" which certified that A. B. "being the holder of shares of the capital stock of the company, was entitled to $-, payable ratably with the other like certificates, at the pleasure of the company out of its future earnings, with dividends thereon at the same rates and times as dividends should be paid upon the capital stock of the company." The "certificate" was declared to be transferable on the books of the company, and had a transfer in blank at the foot of it, in the form common at the foot of certificates of stock, with an appointment in blank of an attorney to transfer. Held, that this was a "dividend in scrip," within the twenty-second section of the Internal Revenue Act of June 30th, 1864, as subsequently amended, which enacts that "any railroad company which may have declared any dividend in scrip or money due or payable to its stockholders as part of the earnings, profits, income, or gains of such company, carried to the account of any fund, or used for construction, shall be subject to and pay a tax of five per centum on the amount of such

Statement of the case.

dividends or profits, whenever and wherever the same shall be payable;" and which authorized the company making such dividend to withhold the five per cent. tax.

2. The said company having declared, in February and August, 1869, two dividends on these certificates, as well as on its stock, and having paid a tax of 5 per cent. on all the dividends, without any suggestion by the revenue officers that any further tax was due, became, in February, 1870, under legislative authority, consolidated with another company; the statute under which the consolidation was effected, enacting that it should be lawful for the old company "to merge and consolidate its capital stock, franchises, and property" with the other company which it was proposed to become united with; but enacting also "that the rights of all creditors of and all liens upon the property of either of said corporations shall be preserved unimpaired, and the respective corporations shall be deemed to continue in existence to preserve the same; and that all debts and liabilities incurred by either of said corporations (except mortgages) shall thenceforth attach to such new corporation and be enforced against it."

1

Held, that the new company was liable to the five per cent. tax on the dividend in scrip, which the old one was bound to pay. 、 And the new company having paid it under protest, to save its property from being sold on a levy for it; held further, on assumpsit brought by the new company against the collector to recover back the money, that the dividend in scrip having been decided to be a proper subject for the five per cent. tax, and the company-notwithstanding a violation of its own duty in making, without demand, a return of the dividend-having had, in fact, a full bearing before the officers of internal revenue, and obtained thereby a large abatement from the tax as originally assessed, this court would not suffer a recovery by the railroad company against the collector, because, in compelling payment of the tax, he had not conformed with certain proceedings of form intended to secure a full hearing to taxpayers, which the act made it lawful and perhaps proper for the assessor to do before resorting to the ulterior measure of levy on the company's property.

3. On a question whether the so-called "interest certificates" were taxable as a dividend in scrip, evidence from the Reports, both of the old and of the new company, was allowable, to show that from the time the "interest certificates" were issued up to the time of the suit, dividends were declared and paid on them, just as on the company's capital stock.

ERROR to the Circuit Court for the Northern District of New York; the case being thus:

The 22d section of the Internal Revenue Act of June 30th, 1864,* enacts:

*13 Stat. at Large, 284, as amended by the Internal Revenue Act of July 13th, 1866; 14 Id. 138.