The legend "O. R. Val. 5.00 cwt." on the bill of lading is an abbreviation for "Owner's released valuation five dollars per hundredweight," and was intended to connect with the contract of release, which was in these words:

"LAWTON STATION, 10, 8, 1907. "In consideration of the price (special Rates on Carloads and first class rates on less quantities) at which the Chicago, Rock Island & Pacific Railway Company hereby agrees to transport a quantity of household goods, furniture or emigrants' movables (including live stock, if any in the car), from Lawton, O. T. Station to Gentry, Ark. Station, the same being consigned to J. M. Carl. I,the consignor, hereby release the said company, and all other railroad and transportation companies, over whose lines the above property may pass to destination, from all liability from any loss or damage said property may sustain in excess of $5.00 per 100 lbs., and I hereby guarantee all charges for freight on connection lines to destination.

"J. M. CARL, Consignor.

"N. B.-When household goods, etc., are shipped at rate based on valuation of $5.00 per hundred pounds, agents will require the owner or consignor to sign this agreement, and when signed same must be kept on file at forwarding station. Agent must then note on Way-Bill 'Released to valuation of $5.00 per hundred pounds.'

The suit was started before a state Justice of the Peace and the pleadings were informal. There was a judgment for $75, which was the uncontradicted full value of the goods lost. The case was taken to the Circuit Court for Benton County, where there was a verdict and a judgment for the same amount. This judgment was, upon a writ of error, affirmed in the Supreme Court of the State, the case being reported in 91 Arkansas, 97; 121 S. W. Rep. 932.

227 U.S.

Argument for Plaintiff in Error.

The uncontradicted evidence was that two boxes and a barrel containing household goods were delivered to the initial carrier, and that the plaintiff in error received same, but delivered only one of the boxes and the barrel, and that the value of the box lost was $75; that there were two rates in effect upon household goods shipped from Lawton to Gentry, one based upon a released valuation of five dollars per hundredweight, and a higher rate upon such articles not so released, and that the latter rate was seventy-eight cents per hundred pounds higher than the released valuation rate, and that these two rates "were evidenced by tariffs duly filed with the Interstate Commerce Commission and published according to law."

The defendant in error testified, over objection; that though he could read and write and had signed the release set out above and had received the bill of lading, he had neither read them nor asked any questions about them, and had not been given any information as to the contents of either document, and had no knowledge of the existence of the two rates. He was also allowed to testify that if he had known of the difference between the two rates, and the effect of accepting the lower, he would have paid the higher rate. There was no evidence tending to show any misrepresentation made by the company, or of any deceit, or fraud, or concealment, unless it be inferred from the fact that the company made no explanation of the rates or the contents of either the bill of lading or the release. The shipper merely said that the bill of lading was handed to him with the release, which he was asked to sign. Exceptions were taken to the rulings upon evidence and to certain parts of the charge and for the refusal of the court to grant certain requests.

Mr. Samuel W. Moore, with whom Mr. James B. McDonough was on the brief, for plaintiff in error:

The Hepburn Act does not prevent a common carrier

Argument for Plaintiff in Error.

227 U.S.

from making a valid contract limiting its liability in case of loss to an agreed valuation, when such contract rests upon a legal consideration.

When Congress enacted this legislation, it had before it the rule universally established in both state and Federal jurisdiction, that a carrier may, by contract, limit its liability to an agreed valuation in the event of the loss of articles, particularly where such agreement, as in this case, is based upon a valuable consideration. For Federal cases, see Hart v. Pa. R. R. Co., 112 U. S. 331; Liverpool Steam Co. v. Insurance Co., 129 U. S. 397; Primrose v. West. Un. Tel. Co., 154 U. S. 1; Chicago Ry. Co. v. Solan, 169 U. S. 133; Cau v. Ry. Co., 194 U. S. 427; Jennings v. Smith, 106 Fed. Rep. 139; Mo., K. & T. Ry. Co. v. Patrick, 144 Fed. Rep. 632.

For the leading cases in the state courts, see Ballon v. Earle, 17 R. I. 441; Louisville & N. R. Co. v. Sherrod, 84 Alabama, 178; Starnes v. L. & N. R. Co., 91 Tennessee, 516; Ullman v. C. & N. W. Ry. Co., 112 Wisconsin, 150; Richmond & D. R. Co. v. Payne, 86 Virginia, 481; Normile v. Oregon R. & Nav. Co., 41 Oregon, 177; Zouch v. Chesapeake & O. Ry. Co., 36 W. Va. 524; Pierce v. Southern Pac. Co., 120 California, 156; Alair v. Northern Pac. R. Co., 53 Minnesota, 160; Douglas v. Minnesota T. R. Co., 62 Minnesota, 292; Duntley v. Boston & M. Co., 66 N. Mex. 263.

Stipulations substantially the same as in the case at bar, releasing the value of property in case of loss to $5.00 per hundred pounds, were upheld in Carleton v. N. Y. C. & H. R. R. R. Co:, 117 N. Y. Supp. 1021; M., K. & T. Ry. Co. v. McLaughlin, 116 Pac. Rep. 811; M., K. & T. Ry. Co. v. Patrick, 144 Fed. Rep. 634; Huguelet v. Warfield, 65 S. E. Rep. 985; Lansing v. N. Y. C. & H. R. R. R. Co., 102 N. Y. Supp. 1092; Hazel v. C., M. & St. P. R. R. Co., 82 Iowa, 477. See also Grenwald v. Barrett, 199 N. Y. 170; Belger v. Dinsmore, 51 N. Y. 166; Magnin v. Dinsmore, 70

227 U.S.

Argument for Plaintiff in Error.

N. Y. 410; Zimmer v. N. Y. C. & H. R. R. R. Co., 137 N. Y. 460; Travis v. Wells-Fargo & Co., 74 Atl. Rep. 444; Bernard v. Adams Express Co., 91 N. E. Rep. 325; Fielder & Turley v. Adams Express Co., 71 S. E. Rep. 99; Blackwell v. Southern Pacific Co., 184 Fed. Rep. 489; Geo. N. Pierce Co. v. Wells-Fargo & Co., 189 Fed. Rep. 561. The cases of St. L. &c. Ry. Co. v. Grayson, 115 S. W. Rep. 933; Schmelzer v. St. L. & S. F. Ry. Co., 158 Fed. Rep. 649; Southern Pac. v. Crenshaw Bros., 5 Ga. App. 675, cited and relied upon by the Supreme Court of Arkansas as supporting its ruling in this case, do not consider or pass upon the question here involved.

The Supreme Court of Arkansas, prior to the case at bar, held that the Hepburn Act did not prohibit the making of a contract requiring notice of loss or damage as a condition precedent to a recovery. St. L., I. M. & S. R. Co. v. Furlow, 89 Arkansas, 404; St. L. & S. F. Ry. Co. v. Keller, 90 Arkansas, 308.

The plaintiff, having signed the contract of release, is conclusively presumed to have assented to both the contract and bill of lading, and will not be heard to say that he did not read them or know what they meant. St. L., I. M. & S. Ry. Co. v. Weakly, 50 Arkansas, 397; Hutchinson v. C., St. P., M. & O. R. R. Co., 37 Minnesota, 524; Coles v. L. E. & St. L. R. R. Co., 41 Ill. App. 607; Johnstone v. R. & D. R. R. Co., 39 So. Car. 55; Western Ry. Co. v. Harwell, 91 Alabama, 340; Wabash &c. R. R. Co. v. Black, 11 Ill. App. 465; Hart v. Pa. R. R. Co., 112 U. S. 331; John Hood Co. v. Am. Express Co., 191 Massachusetts, 27; Black v. Wabash &c. R. R. Co., 111 Illinois, 351; Stewart v. Cleveland &c. Ry. Co., 21 Ind. App. 218; Atchison &c. Ry. Co. v. Dill, 48 Kansas, 210; Grace v. Adams, 100 Massachusetts, 505; Davis v. Cent. V. Ry. Co., 66 Vermont, 290; Taylor v. Wier, 162 Fed. Rep. 585; Milligan v. Ill. Cent. Ry. Co., 36 Iowa, 181; Cau v. T. & P. Ry. Co., 194 U. S. 426.

To permit the judgment in this case to stand is to set aside and annul the lawfully published interstate tariffs of the defendant, and to create the very discrimination which it is the purpose and intent of the Interstate Commerce Act to prevent. T. & P. Ry. Co. v. Mugg, 202 U. S. 242; Armour Pkg. Co. v. United States, 209 U. S. 56; T. & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426.

The bill of lading and contract of release inure to the benefit of the connecting carrier and may be availed of by it.

These two documents not only established the agreed valuation, but by the express terms of the contract of release it inured to the benefit of connecting carriers, within the rule that a contract may be availed of by one who is not a party to it, if it was made for his benefit as one of its expressed objects. Young v. The Key City, 14 Wall. 653; Central Tr. Co. v. C. J. & M. Ry. Co., 58 Fed. Rep. 500; Thompkins v. R. R., 102 Georgia, p. 445; Collins v. K. C. M. & E. Co., 110 Pac. Rep. 734 (Okla.); Spear Min. Co. v. Shinn & Co., 124 S. W. Rep. 1045 (Ark.); Chambers v. Phila. P. Co., 75 Atl. Rep. 159 (N. J.); Eau Claire L. Co. v. Banks, 136 Mo. App. 44; Luedecke v. Des Moines C. Co., 118 N. W. Rep. 456; Bethlehem Iron Co. v. Hoadley, 152 Fed. Rep. 735; Fish v. Bank, 150 Fed. Rep. 524; Whitehill v. W. U. Tel. Co., 136 Fed. Rep. 499.

No appearance for defendant in error.

MR. JUSTICE LURTON, after making the foregoing statement, delivered the opinion of the court.

The Supreme Court of the State declined to consider or pass upon any of the questions made in that court for reversal except the single question as to whether the plaintiff in error, as the final carrier in the route, was entitled to the benefit of the stipulation in the release signed by the shipper, releasing the Chicago, Rock Island and Pacific Railway, the primary carrier, "and all other Railroad and