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Line, the contracting carrier is responsible. And under the first of these authorities additional stipulations in the bill of lading by which the carrier seeks to confine its liability to its own line, and which are not expressly assented to by the shipper, do not change the nature of the contract, and are inoperative as limitations of the carrier's liability. Mere acceptance of the bill of lading does not establish the shipper's assent to stipulations of this kind: See further, as to the character of the contract, Savannah etc. Ry. Co. v. Pritchard, 77 Ga. 412; 4 Am. St. Rep. 92, and Atlanta etc. R. R. Co. v. Texas Grate Co., 81 Ga. 610. A different contract is not shown by evidence that the carrier was not interested in the rate contracted for as to the part of the route beyond its own terminus, but received only its regular "local" rate from the connecting carrier. It follows that the court below did not err in declining to give in charge to the jury the requests set out in the third, fourth, and fifth grounds of the motion for a new trial.

2. Another stipulation under which the defendant claimed exemption from liability was the following: "All claims for damage to goods must be made, and the nature and extent thereof fully disclosed, in the presence of the agent of the carrier having the same in their custody, before they are removed from the station 385 or wharf. Unless written demand for damage shall be made upon the carrier liable therefor, or upon the carrier which actually delivered the goods, within ten days after delivery, all claims for damage shall be taken to have been waived, and no suit shall thereafter be maintained to recover the same." It was contended that the court erred in charging the jury that this was not binding upon the plaintiffs unless they "signed it, or understood and agreed to it in such manner as would indicate that it was clearly made a part of the contract." What we have said as to other stipulations in the bills of lading applies also to this. Under the decision of this court in Southern Express Co. v. Barnes, 36 Ga. 532, it is an attempt to limit the legal liability of the carrier, and is not effectual without proof of assent thereto by the shipper.

3. When goods are damaged in the hands of the carrier the burden of proof is upon it to show that it was free from negligence, or that, notwithstanding its negligence, the damage occurred without its fault; that is, that its negligence did not contribute to the damage; and no exception to the

rule arises from the fact that the goods are perishable or liable to deteriorate rapidly from internal causes. In all cases the presumption of law is against the carrier: Code, secs. 2064, 2066. The word "loss," as used in those sections, includes injury or damage to the goods: Richmond etc. R. R. Co. v. White, 88 Ga. 813.

4. The office of a bill of lading is to embody the contract of carriage, as well as to evidence the receipt of the goods; and when the shipper accepts it without objection before the goods have been shipped, and permits the carrier to act upon it by proceeding with the shipment, it is to be presumed that he has accepted it as containing the contract, and that he has assented to its terms, except, as we have seen, in so far as it undertakes 386 to limit the general liability of the carrier. Incident to every such contract are certain matters which, when not expressed in the instrument, enter into and form a part of it by implication of law, and one of these is the time of performance. If no time is expressed, the instrument is not on that account to be regarded as incomplete, so as to admit proof of a distinct and separate agreement as to time. In such case the parties are presumed to have intended that the carrier's obligation as to the time of performance shall not extend beyond that imposed upon it by law in all undertakings for the transportation and delivery of goods, and which requires no more than that "the same be done without unreasonable delay": Code, sec. 2073. implied agreement is as much a part of a bill of lading silent as to the time of performance, as if expressed in it in somany words; and the rule which forbids the introduction of parol proof to vary the terms of a written instrument excludes evidence of a prior or contemporaneous parol agreement that the goods shall be delivered within a definite and specific time. "There is no rule of law better settled or more salutary in its application to contracts than that which precludes the admission of parol evidence to contradict or substantially vary the legal import of a written agreement": See Martin v. Cole, 104 U.S. 36, 38; Naumberg v. Young, 44 N. J. L. 331; 43 Am. Rep. 380; Jones on Construction of Commercial and Trade Contracts, 193-195, 245 et seq., 308,. 309. In Hutchinson on Carriers, edition of 1891, sections126, 127 a, it is said: "Except in the recital or acknowledgment of the receipt of goods and of their quantity and condition when received, bills of lading are strictly written

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contracts between the parties, and come within the general rule which precludes the introduction of parol evidence to contradict or vary such contracts. And not only is such evidence inadmissible to change or vary in any particular the express 387 terms of the contract, but in these instruments, as in all other written contracts, there may be implied obligations as to which the contract may be entirely silent, but which result by necessary implication or construction from the very nature of the contract itself; and such implied obligations can no more be varied by verbal evidence than the express written stipulations of the parties": See, also, Louisville etc. Ry. Co. v. Wilson, 119 Ind. 352, and Pennsylvania Ry. Co. v. Clark, 2 Ind. App. 146. In the case last cited it was held that parol proof was inadmissible to show an undertaking to ship on a certain train, the bill of lading being silent as to the time of shipment, and the effect of such evidence being to vary the implied agreement to ship within a reasonable time. "An agreement to do a thing within a definite time can never be identical in spirit or substance with an agreement to do it within a time not fixed, and which in law is to be merely a reasonable time. And, where the written contract is left in that indefinite shape, an agreement to make it definite is an agreement to alter it; and this cannot be done by any contemporaneous parol understanding": Stange v. Wilson, 17 Mich. 346; Liljengren etc. Co. v. Meade, 42 Minn. 420; Stone v. Harmon, 31 Minn. 512; Driver v. Ford, 90 Ill. 595. The responsibility imposed upon the carrier by the implied contract or duty to transport and deliver within a reasonable time is merely that of an ordinary bailee for híre, and renders the carrier liable only for such damages from delay as the bailor may have suffered by its negligence; but if the contract is that this service shall be performed within a certain specified time, the carrier will be held to strict performance, and no degree of diligence will excuse the failure to perform within that time. In the present case the bills of lading were silent as to the time of transportation and 388 delivery, but the plaintiffs, over objection, were permitted to introduce evidence to show a prior and contemporaneous parol agreement that the goods were to be shipped by a certain "fast freight schedule," which was also admitted in evidence over the defendant's objection, and which stated that fruit trains shipped under it would leave Atlanta at a certain hour, "arriving in New York before 12 o'clock the

second night, in good time for early market of the third morning." Under the pleadings the court erred in admitting this testimony. The plaintiffs having proved a written contract of carriage, a part of which was an implied stipulation that the carrier should be allowed a reasonable time for performance, they could not be permitted in this manner to substitute a warranty to deliver within a definite and specific time. If the understanding of the shippers was that the goods were to be delivered within a certain time, and it was intended that this should form a part of the contract, they should have seen to it that this understanding was embraced in the written instrument which the carrier tendered them as containing the contract of carriage. But they accepted it as it stood, without objection, and permitted the goods to be shipped under it; and it is not pretended that the understanding as to delivery in a specified time was omitted by fraud or mistake. A bill of lading thus accepted and acted upon, though signed only by the carrier, has the same effect, as to being varied by parol, as if signed also by the shipper, and must be looked to as the final repository and sole evidence of the contract of carriage: 17 Am. & Eng. Ency. of Law, tit. Parol, 432. And see Richmond etc. R. R. Co. v. Shomo, 90 Ga. 496, and authorities cited.

5. Had the plaintiffs sued upon the implied contract or duty to deliver within a reasonable time, evidence as to the schedule might have been received, together with 389 all other relevant facts and circumstances touching that particular shipment, as well as touching that class of shipments generally, to ascertain what length of time would be reason. able. But the contract alleged was a contract to deliver in a definite and specific time; and the plaintiffs must be held to the case stated in the declaration. Evidence as to what would be a reasonable time was therefore inadmissible, and no recovery could be had for failure to deliver in a reasonable time: See Pennsylvania Ry. Co. v. Clark, 2 Ind. App. 146, and Snow v. Indiana etc. Ry. Co., 109 Ind. 422. If the necessary allegation is supplied by amendment, evidence as to what would be a reasonable time will then be admissible.

It follows that the court below erred in not granting a new trial.

Judgment reversed.

CARRIERS-CONNECTING WHEN FIRST CARRIER LIABLE ON THROUGH SHIPMENT.-A railroad company receiving goods consigned to a place beyond the terminus of its own lines undertakes to convey the same safely to the point of destination, and will be liable for the loss of such goods on connecting lines: Falvey v. Georgia R. R., 76 Ga. 597; 2 Am. St. Rep. 58, and note; Savannah etc. Ry. Co. v. Pritchard, 77 Ga. 412; 4 Am. St. Rep. 92, and note. See, also, the notes to St. Louis etc. Ry. Co. v. Weakley, 7 Am. St. Rep. 118, and Savannah etc. Ry. Co. v. Harris, 23 Am. St. Rep. 558. The power of a carrier to contract for transportation beyond his own route is thoroughly discussed in the extended note to Wells v. Thomas, 72 Am. Dec. 230.

CARRIERS-LIMITING LIABILITY BY NOTICES.-NECESSITY FOR ASSENT BY SHIPPER: See the extended note to Kansas City etc. R. R. Co. v. Rodebaugh, 5 Am. St. Rep. 720.

Carriers-Negligence-BurdeN OF PROOF.—In an action for negligence for loss or injury of goods in transportation, the burden of proof is upon the carrier to show that the injury or loss complained of is attributable to one of the causes or perils against which the contract secures immunity: Terre Haute etc. R. R. Co. v. Sherwood, 132 Ind. 129; 32 Am. St. Rep. 239, and note; Johnson v. Alabama etc. Ry. Co., 69 Miss. 191; 30 Am. St. Rep. 534, and note.

BILLS OF LADING-ACCEPTANCE-PRESUMPTION.-The fair and honest acceptance of a bill of lading without dissent raises a presumption that all limitations contained therein were brought to the shipper's knowledge, and agreed to by him: Merchants' etc. Transport. Co. v. Bloch, 86 Tenn. 392; 6 Am. St. Rep. 847. To the same effect: Pacific Express Co. v. Foley, 46 Kan. 457; 26 Am. St. Rep. 107, and note. See, also, the note to Railway Co. v. Cravens, 38 Am. St. Rep. 241, where the cases are collected, and the extended note to Kansas City etc. R. R. Co. v. Rodebaugh, 5 Am. St. Rep. 719, and Bissell v. New York etc. R. R. Co., 82 Am. Dec. 380.

BILLS OF LADING-PAROL EVIDENCE TO AFFECT.-Parol evidence is not admissible to vary the terins of that portion of a bill of lading which con. stitutes the contract: Van Etten v. Newton, 134 N. Y. 143; 30 Am. St. Rep. 630, and note; but see Savannah etc. Ry. Co. v. Collins, 77 Ga. 376; 4 Am. St. Rep. 87, and note.

SAVANNAH AND OGEECHEE CANAL Co. v. SHUMAN.

[91 GEORGIA, 400.]

MANDAMUS LIES AGAINST CORPORATIONS to compel them to perform imperative duties imposed upon them by the express provisions of their charters.

MANDAMUS AGAINST CORPORATION.-A private person may, by mandamus, enforce the performance by a corporation of a public duty in which he has a special interest. Hence a lumber merchant specially interested in the navigation for which a canal company is chartered, and who sustains special damages from its violation of its charter, may compel it by mandamus to perform the duties for which it was incorporated. MANDAMUS IS A DISCRETIONARY REMEDY.-A judgment granting the writ is not subject to reversal on appeal without clear proof of an abuse of judicial discretion.

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