already existed at common law. In respect of the question before us, the statute is not distinguishable from any other law affording a remedy for the breach of a contract of carriage of goods between two states. We conclude that the statute was a proper exercise of the police power reserved to the state, and is therefore valid. The court, therefore, did not err in overruling the defendant's exception to the petition.

ant to statutory duty

In answer to the petition, the defendant pleaded that the shipment which gave rise to this controversy was over the Pittsburgh, Cincinnati & St. Louis Railway to St. Louis, and thence over the Texas & St. Louis Rail- Acceptance of way to McGregor, Tex., where the freight was freight pursu delivered to its road for transportation to Brenham; that the Pittsburgh, Cincinnati & St. Louis Ratification Company had no authority to contract for the car- of contract. riage of the nails over its road, and that its agents at McGregor received the freight for transportation to Brenham at its customary rates, without having any knowledge of the bill of lading executed by that company; that upon receipt of the freight it paid the accrued charges, as shown by the way-bill to be $197.50, and that its charges in addition amounted to $35. The entire charges, as shown by the bill of lading, were $197.50. The defendant introduced evidence of the facts alleged in its answer, and the court charged the jury as follows: "If the jury believe, from the evidence, that the defendant company received the nails at the town of McGregor from another company, and transported them to the town of Brenham, this would constitute an affirmance of the original contract of shipment, and the defendant thereby became bound by the terms of the shipment as shown in the bill of lading." In this we think there was error. Our statutes make it obligatory upon any railroad company in this state to draw over their road, without delay, the passengers, merchandise, and cars of every other railroad company which may enter and connect with their road. Rev. St. art. 4251. See, also, articles 4226, 4227, 4251-4254. In the absence of a provision of this character, it might be proper to hold that a carrier who has received freight from another carrier upon a through bill of lading, without any express agreement as to the charges, should be presumed to have ratified the bill of lading, though made without its authority, and to have become a party to the contract. But certainly, when the carrier is bound by statute to receive and transport the goods without delay upon tender by the connecting carrier, no such presumption should be indulged. Such a rule would. be to force a contract upon a carrier to which he had not

given his consent, and compel to carry at a rate fixed by another company. The result of the construction of the law by the court below is that a railroad company is not permitted to refuse to receive the goods for transportation; yet, if it does receive them, it ratifies by that act a bill of lading made without his authority. This, in our opinion, cannot be tolerated. We so held at the last Tyler term in a case not yet reported. Gulf, C. & S. F. R. Co. v. Baird (Tex.), 40 Am. & Eng. R. Cas. 160. Should a railroad company in Arkansas receive freight to be transported to El Paso, in this state. for a less charge for the whole distance than the customary charge of the Texan road for the transportation over its own line, could the latter be forced to accept the contract? We think not. We do not think the legislature intended that such a construction should be given to the statute under consideration. Our opinion is that the act only applies when the railroad company that is sought to be charged in damages has either itself executed the bill of lading, or authorized another company to execute it, or has ratified it by some voluntary act on its part. Instead of the charge complained of, the court should have given an instruction, in substance, the same as charge No. 1, requested by defendant.

We think the court should not have excluded the original way bill, when offered in evidence. In connection with

paynent of

accrued charges.

other testimony, it showed that defendant paid, at Evidence as to the time it received the nails, accrued charges amounting to as much as the entire charge agreed upon on the bill of lading, for the transportation of the property for the whole distance, and tended to show that it never intended to ratify that contract. We infer from the statement appended to the bill of exceptions that the depositions of the witnesses Murray and Dodge were objected to in writing, and were suppressed at a term of the court previous to the trial. If so, the bill of exceptions should have been then taken, and the depositions were properly excluded when offered on the trial.

The plaintiff has filed cross-assignments of error. The goods were first demanded on the 15th of December, 1884,

Tender of freightPresentation of bill of lading.

and again on the 27th of January, 1885. On both occasions the charges shown by the bill of lading were tendered. There was a dispute whether or not the bill of lading was presented at the time of the first demand. It was formally exhibited to the company's agent when the second tender and demand were made. Under these circumstances, the court charged the jury, in effect, that, in order to make the demand effectual under the statute, the plaintiff must at the time have

exhibited his bill of lading, and refused to charge that such presentation of the instrument was not necessary. We are of opinion that the court erred in these rulings. The statute does not expressly require that the bill of lading shall be shown to the agent of the railroad company when the goods are demanded, nor do we find anything either in the words of the act, or the nature of the business, from which it ought reasonably to be inferred that the legislature so intended. It is to be presumed, as a matter of law, that a party to a contract knows its contracts; and, as a matter of fact, it is not unreasonable to suppose that the agents of a railroad company, who receive freight at its destination, know the charges which the company is entitled to receive as shown by the bill of lading. We think, therefore, that it was not intended that the exhibition of the bill of lading at the time of the tender of the money and demand of the goods should be a condition precedent to the recovery of the damages. But the statute is strictly penal, and the penalty is severe, and we think a case may arise in which the owner of the goods should not recover if he has refused to exhibit his contract. It is only for a willful disregard of the law that its penalties should be inflicted. Hence, if there should be a mistake, if the agent of the company should not in fact know the contents of the bill, and should the owner of the goods having it in his power refuse to produce it, he would not be entitled to recover. In regard to appellee's second assignment of error, it is sufficient to say that it was decided upon the former appeal that the defendant had no right to require of plaintiff a receipt for the overcharge; and that if such a right should be insisted upon, on another trial, it would be proper to instruct the jury that it did not exist. If no issue should be again made upon the question, we do not see that such an instruction would be either necessary or proper. For the errors pointed out, the judgment is reversed and the cause remanded. Each party will pay one-half of the costs of this appeal.

BEARD et al.

ย.

ST. LOUIS, ALTON & TERRE HAUTE R. Co.

(Iowa Supreme Court, February 10, 1890.)

Connecting Carriers-Delivery of Goods for Transportation Beyond Terminus--Effect.-In Illinois, the acceptance of goods for transportation which are marked for carriage beyond the terminus of the carrier's line of

transportation establishes a prima facie contract for transportation to the place of destination of the goods.

Same-Acceptance by Intermediate Carrier Liability. The fact that the carrier receiving the goods is an intermediate carrier and not the carrier to whom the goods were delivered does not alter the rule, and such intermediate carrier is liable for injuries to the goods through the negligence of a connecting line to which they were subsequently delivered.

Carrier Protection of Butter from Refrigerator Cars.-Under a contract for the transportation of butter, a common carrier is bound to provide refrigerator cars, or other cars in which ice could and should be used to protect the butter from the heat, and until such cars can be provided it is required to put the butter in cold storage.

APPEAL of Superior Court of Cedar Rapids.

Action to recover damages for injury to butter alleged to have been sustained in transit through the negligence of the defendant. Plaintiff appeals from a judgment for the defendant.

Rickel & Crocker, for appellants.
Mills & Keeler, for appellee.

Facts.

BECK, J.-I. The butter in question was shipped from West Union upon the Burlington, Cedar Rapids & Northern Railway. Its destination was New Orleans. It passed over two other railroads before it reached St. Louis, and by the last one transporting it, the Wabash, St. Louis & Pacific, it was delivered to a transfer company, and was carted across the Mississippi river bridge, and delivered to defendant. It was transported to St. Louis in refrigerator cars, and was in good condition when delivered to defendant, by whom it was put in common cars, and in a few hours transported to Duquoin, Ill., and the cars then delivered to the Illinois Central Railway Company, whose road extended to New Orleans. It was transported by the latter company to New Orleans in the cars in which it was transported by defendant, and was greatly injured by the heat of the cars. It is shown that the butter was delivered by defendant to the Illinois Central Railway Company in good or der and condition. It was transported to St. Louis in refrigerator cars, and in a few hours after it was taken from these cars delivered by defendant to the Illinois Central Railway Company, and was transferred by that company in the common cars in which it was delivered to it. There were two separate shipments of butter involved in this action, but the two transactions present the same state of facts. The receipts executed by the defendants for the butter are in the following form:

"No. 5,632. Cairo Short Line. Wagon No, 91-96. East St. Louis, 5-30-1885. Received from St. Louis Transfer

Company, in good order, the following property, for transportation:

"Consignee, Wm. Beard & Son.

"Destination, New Orleans, La.

"Consignor, Wab. Pro. 2,794, M. W.

"H. ROEDERER, Agent. D. 5-30.

"[copy.]

"Nfy. C. A. Lawrence & Co., New Orleans, La.

66

Mkd., Cloverdale Cry."

The way bills accompanying the butter are in this form:

"Tare,

Form 176.

St. Louis, Alton & Terre Haute R. R. Co.

Weighed at

"Gross,

"Net,

No. W.-B., 59. No. of car, 2,503.

(St. Louis & Cairo Short Line.)

"Whose car, B.

"May 30, 1886.

"From East St. Louis to New Orleans, La.

2. We are of the opinion that the acceptance of the butter by defendant, marked so as to show its destination, and the receipt and way bills showing that it was destined to New