
    The Cincinnati, Hamilton and Dayton, and Dayton and Michigan Railroad Company v. Pontius and Richmond.
    1. A railroad company may become liable as common carrier, by contract for transportation of goods over other railroads forming with its own a continuous line.
    2. Where it does so contract, any stipulation in the contract, or notice to the other party, to the effect that the company will not be liable for losses or damage occasioned by negligence or fault while the goods are not upon its own road, is against public policy and void, equally as iri case of transportation exclusively upon its own road.
    
      3. A bill of lading signed by tie company’s receiving agent, and accepted and acquiesced in by the consignor, is binding upon the latter, although not signed by him; and the terms and conditions of the contract expressed therein cannot be contradicted by parol proof.
    
      4. A company whose road extended from Cincinnati to Dayton, having an arrangement with other companies, whose roads extended from Dayton to New York, for rates of “through fare,” to be divided pro mía among them, received at Cincinnati goods consigned to a party in New York, and signed a bill of lading, stating therein that the goods were “to be transported to the terminus of its road, and there delivered to agents ” of connecting roads; and that in case of loss or damage the company alone should be held answerable therefor in whose custody the goods might be at the time of th'e happening thereof Held: — That this was not a contract to carry the goods to New York, but to carry them to Dayton only; and that the company so receiving the goods is not liable for loss or damage thereto while in the hands of other companies, on the line from Dayton to New York.
    Error to tbe court of common pleas of Hamilton county. Eeserved in the district court.
    The original case was an action brought by Pontius and Eichmond against the plaintiff in error, to recover $1,882 damages alleged to have been sustained by reason of th'e company’s failure to carry, and deliver according to contract, a quantity of apple butter delivered to the company, to be transported from Cincinnati to New York. The plaintiffs alleged that at the time of the delivery of the apple butter the defendant was a common carrier for hire, and had connections with forwarding lines by steamboats and other railroads, whereby freight was carried from Cincinnati and delivered in New York city; that defendant assúmed, as such common carrier, to send freight from Cincinnati to New York city; that plaintiffs delivered to defendant, as such carrier, and defendant received at Cincinnati the apple butter in question, to be carried from Cincinnati to New York city, and there delivered to Smith, Chappell & Chester, No. 91 Barclay street, within a reasonable time, which the defendant failed to do.
    The defendant, by its answer, took issue upon the following points:
    
      1. Denied that it assumed as a common carrier to send the goods from Cincinnati to New York city.
    2. Denied that it received the goods in question, to be carried from Cincinnati to New York.
    3. Denied that it agreed to deliver the same to Smith, Chappell & Chester, in New York.
    The answer further averred that the goods in question were received on the 17th day of January, 1865, under a bill of lading, of that date, whereby it was agreed that defendant should transport the apple butter to the terminus of its road, and there deliver the same to the agents of connecting steamboats, railroad companies, or forwarding lines, on certain conditions in the same contained, and among others this, to wit: that the .defendant should not be liable for damages to perishable property of any kind occasioned by delays from any cause, and that in case of any loss', detriment, or damage done to or sustained by any of the property aforesaid during the transportation, whereby any legal liability or responsibility should or might be incurred, that company alone should be held answerable therefor in whose actual custody the same might be at the time of the happening of such loss; that said apple butter was perishable property, and that the loss complained of in the petition was done to or sustained by it while the same was not in the custody of the defendant, but while the same was in the actual custody of the New York and Erie Railroad Company. It further averred, that immediately upon the receipt of the apple butter it caused the same to be carried over its road to Dayton, in this State, the terminus of the same, and there delivered within a reasonable time to the Atlantic and Great Western Railroad Company, having a railroad there connecting with that of the defendant, and that the latter company carried the same to Salamanca, in the State of New York, and there, within a reasonable time, delivered the same to the New York and Erie Railroad Company.
    In reply to this answer, the plaintiffs denied generally the matters and things set up in the answer, and especially “ that any valid conditions in the defendant’s contract as common carriers, in the petition mentioned, were made as is in the answer mentioned, qualifying and limiting the liability of the defendant.”
    The evidence upon the trial was substantially as follows : The plaintiffs being desirous of sending the apple butter in question to New York, for sale there, delivered it to the defendant at Cincinnati, on the 17th day of January, 1865, and at the time of such delivery the packages containing it were marked thus: “ Smith, Chappell & Chester, No. 97 Barclay street, New YorTcP On the same day, and at the time of the delivery of the goods, the bill of lading for the goods was delivered to E. Pontius, one of the plaintiffs, and the person who had charge of, and who actually procured the shipment of the goods, at the office of the defendant, in Cincinnati the usual and reasonable time for goods to reach New York when shipped from Cincinnati by their way being from eight to ten days.
    The bill of lading was in form following, viz.:
    “ Cincinnati, Hamdlton and Dayton, and Dayton and Michigan Badl/road Express Freight Dine {contract for through rate).
    
    
      
    
    Marked and numbered, per margin, to be transported by the Cincinnati, Hamilton and Dayton, and Dayton and Michigan Eailroad Company to its terminus, and there delivered to the agents of connecting steamboats, railroad companies, or forwarding lines, on the following terms and conditions, viz. (among others) ........
    
    “ It is further stipulated and agreed, that in case of any loss, detriment, or damage done to or sustained by any of the property herein receipted for, during such transportation, whereby any legal liability or responsibility shall or may be incurred, that company alone shall be held answerable therefor in whose actual custody the same may be at the time of the happening of such loss, detriment, or damage,” etc.
    The margin referred to was as follows (after stating the marks as above):
    “ Through at $1.70 per 100 lbs.
    “ “ “ bbl.
    “ “ “ bale.
    To New York, via-.”
    Immediately on the receipt of the goods by the defendant, and upon the same day, the apple butter in question was placed in a car belonging to the “Erie Eailroad, of New York,” then in the possession of the defendant, and by the latter safely earned to Dayton, Ohio, and there on the same day, to wit, the 17th January, 1865, delivered to the Atlantic and Great 'Western Eailroad Company, to be carried over its road toward New York. The same car containing the apple butter was received at Salamanca, .New York, on the 25th January, 1865, and between that time and the 29th of the same month was delivered to the New York and Erie Eailroad Company, to be transported to New York city.
    The latter company did not deliver the apple butter in New York until about the 11th day of March, 1865, when,, in consequence of the time -of year, it was impossible to sell it for anything at all, it being then wholly out of season.
    The defendant is a railroad corporation under the laws of this State, and owns a railroad, the termini of which are Cincinnati to the southward, and Dayton to the northward, both in this State. The Atlantic and Great Western Eailroad; Company is a corporation under the laws of this State, owning a railroad, the termini of which are Dayton, aforesaid, to the southward, and Salamanca, in the State of New York, to the northward.-; and the New York and Erie Railroad Company is a corporation under the laws of the State of New York, .owning a railroad between said Salamanca, in New York, and New York city.
    The defendant was at that time engaged in shipping goods to New York city, on the terms stated in the bill of lading given to the plaintiffs, and the freight or fare paid on this line between Cincinnati- and New York city, either way, was distributed among the three companies composing it, on terms agreed upon between them.
    The Erie Company at New York, and the defendant at Cincinnati, fixed the rates of freight through from the one point to the other, and the delivering company collected of the consignee the whole amount of the freight, and accounted for the proper proportion of it to the several companies.
    The court, to whom the cause was submitted without a jury found for the plaintiffs, and assessed their damages at $1818.
    A motion for a new trial was made by defendant, on the ground that the finding was contrary to the law and evidence. This motion was overruled, and judgment entered upon the finding.
    A bill of exceptions was taken, which sets forth all the evidence as above recited; and the only error assigned is the refusal of the court to set aside the finding, and grant a ■new trial.
    
      8. ds /S'. It. Matthews for plaintiff in error:
    1. Carriers of goods for hire, indifferently for all persons, ¡at common law were denominated common carriers, and for a very long time have been held liable for all damage and loss to goods during the carriage, from whatever cause, unless from the act of God, which is limited to inevitable accident, or from the public enemy. Redfield on Railways, vol. ii. <ch. 23, sec. 1, p. 151.
    
      2. It is settled law in England since the case of Southcote, 4 Coke, 83, that any bailee may stipulate for an increased or diminished degree of responsibility from that which the law imposed upon his general undertaking. Redfield on Railways, vol. ii. p. 159.
    3. In England, since the establishment of railways, parties who receive goods and book them for a certain destination, are regarded as carriers throughout the entire route, in the absence of any stipulation to the contrary. Marchamp v. L. & P. Railway Co., 8 M. & W. 421; Watson v. Ambergate Railway Co., 4 H. & C. 582; Scothorn v. South Staf. Railway Co., 8 Exch. 341; Collins v. Bristol & Ex. Railway Co., 11 Exch. 790; 5 H. & M. 969; House of Lords; Wilby v. West Coun. Railway Co., 2 H. & M. 703; Crouch v. L. & M. West Railway Co., 14 C. B. 455; Coxon v. Great Western Railway Co., 5 H. & W. 224; Aldridge v. Great Western Railway Co., 15 C. B. (N. S.), 582; Fowler v. Great Western Railway Co., 7 Exch. 699; Zung v. Railway Co., Law Rep., Com. Law, Oct. 1869, Part X.
    4. The earlier English cases were to the contrary; and held that, in the absence of special contract, the carrier is only liable for the extent of his own route, and for safe storage and delivery to the next carrier. Garride v. The Trent & Mersey Nav. Co., 4 Term, 581.
    5. This latter rule is the one generally adopted in America:
    In Maine — Perkins v. Railway Co., 47 Maine, 573; Knight v. Railway Co., Am. Law Reg. of Nov. 1869.
    In Vermont — Farmers & Mech. Bank v. Champ. Trans. Co., 16 Verm. 52; 18 Verm. 131; 25 Verm. 209; Brintnall v. R. R. Co., 32 Verm. 665.
    In Massachusetts — Nutting v. Railway Co., 1 Gray, 502; Fence Co. v. Railway Co., 8 Allen, 189; Darling v. Railway Co., 11 Allen, 295; Gast v. Railway Co., 99 Mass. 226.
    In Connecticut — Nood v. N. Y. & M. H. R. R. Co., 22 Conn. 1 and 502; Elmore v. Naugatuck Railway Co., 23 Conn. 451; Naugatuck Railway Co. v. Button Co., 24 Conn. 468.
    In New York — Ackley v. Kellogg, 8 Cowen, 223; Van Santvoord v. St. John, 6 Hill, 157; Same v. Same, 25 Wend. 661; Foy v. Railway Co., 24 Barb. 382; Smith v. Railway Co., 43 Barb. 225; Bissell v. Railway Co., 22 N. Y. 258; Insurance Co. v. Chase, 1 E. D. Smith, 115; Dillon v. N. Y. & E. Railway, 1 Hilton, 231; Hunt v N. Y. & E. Railway, 1 Ill. 228.
    In Pennsylvania — Penn. Cen. Railway Co. v. Schwartzenberger, 45 Penn. St. 208; Balt. & Phil. &c. Co. v. Brown, 54 Penn. St. 77; Jenneson v. Railway Co., 4 Am. Law Reg. 234.
    In Maryland — McCann v. Railway Co., 20 Md. 210.
    In Wisconsin — D. & M. Railway Co. v. F. & M. Bk., 20 Wis. 122.
    6. When a carrier is held liable beyond the limits of his own route it is upon the ground of a special undertaking, cither express or implied. Redfield on Railways, sec. 162, 3, and cases there cited.
    7. Whether any such contract exists is a matter to be determined, if express, by the production or other proof of the contract and its terms; if implied, from all the facts and attending circumstances of the case.
    8. If the contract is express, it excludes any implied contract. Creighton v. The City of Toledo, 18 Ohio St. 447.
    9. If the contract is express and in writing, it must of course be proved by the production of the writing; and when that contract is produced it cannot be varied or contradicted by parol testimony. May v. Babcock, 4 Ohio, 334; The Schooner Reeside, 2 Sumner, 567; Davidson v. Graham, 2 Ohio St. 131.
    10. The liability of a railroad company for loss or damage to goods which it has agreed to transport upon or over a line of road other than its own, is founded upon contract, and not upon its office or duty as a common carrier; and consequently its liability in such case is measured merely by the terms of its contract, express or implied, and not by its general duty as a common carrier. York Co. v. 
      Central Railroad, 3 Wallace (U. S.), 107; and all the eases cited as sustaining the so-called American rule.
    
      T. W. Bartley for defendants in error:
    1. The plaintiff in error was a common carrier, and, as such, was engaged in the business of shipping or transporting freight from Cincinnati to New York. Redfield' on Carriers, pp. 16,17, sec. 23.
    The high responsibility which is imposed upon a common carrier is not a matter arising ex contractu, but attached by law to the calling or employment of the common carrier. If it were a matter resting upon contract, it might be qualified or limited, or dispensed with, by contract. But it is a law founded upon public policy and required by the public safety, and which cannot be changed • or abrogated by the contracts or agreements of parties. 1 Smith’s Leading Cases 323, 325, 326 (Hare & Wallace’s Ed. of 1855); Jones v. Voorhes, 10 Ohio, 146.
    2. The only qualification to this doctrine which has been allowed is, that the common carrier might, by express agreement, restrict his liability so far as the common-law rule made him an insurer for the goods entrusted to his charge, and no further. This qualification was first adopted in Ohio, in the case of Davidson v. Graham, 2 Ohio St. 131, which was subsequently affirmed in Graham & Co. v Davis & Co., 4 Ohio St. 362; and also in Welsh v. The Pittsburg, Fort Wayne and Chicago Railroad Company, 10 Ohio St. 65. The same qualification had been previously settled in England and in several of the other States of this country. But this qualification is based on the ground that the common carrier cannot stipulate against the liability for losses by negligence or misfeasance. So the plaintiff in error could not, by special conditions, limit its liability for losses arising from neglect or misfeasance.
    
    3. As to the ground of defence, which makes the plaintiff in error a common carrier from Cincinnati to Dayton, and a gyri/oate carrier or mere forwa/rder from thence to New York — that is a change of character, by the way, and a manifest departure from the nature of the undertaking in the bill of lading. It is an undertaking that the goods shall go through to the place of delivery all the way on railroad. A bill of lading imports not only a receipt of the goods, and an undertaking for transportation, but also a delivery at the place of destination. The business and obligation of the contracting party do not terminate until delivery. The delivery is a very essential part of the business of the carrier. If the special tferms of exemption had been omitted in this bill of lading, no question would have been made, or could have been made, that this was a contract for transportation through to New York, and delivery at that place. Do these special conditions change the nature of the undertaking, and actually annul the obligation of the contract? They were framed by the company itself for its own special benefit, and must, therefore, be construed not only most strongly against the company, but in connection with the other terms and provisions of the bill of lading. Thus taken and construed, these special conditions first express the mode of the transportation, and then prescribe the special exemptions. The mode of transportation by taking over the road of the plaintiff in error to its terminus, and the delivery to the agents of its connecting and forwarding lines previously provided by arrangement made by the contracting company for through transportation; the obligation for through transportation and delivery at the point of destination is not impaired, rescinded, or changed, by any fair and reasonable interpretation. It is still an obligation to transport through to New York and deliver at that point to the consignees m the mode and on the conditions mentioned; and the undertaking is by this company alone, and for a through line of transportation. No other company is mentioned.
    The special provisions in the bill of lading, strictly and fairly construed, do not exempt the company from liability, which continued to the place of delivery.
    The circumstances show most conclusively, that, notwithstanding all the shifts, devices, and artful circumlocution employed in the special conditions, the actual fact was, that the companies of the connecting and continuous lines were simply the agents and instrumentalities employed by the plaintiff in error to transport through to New York. The fact of the authority given to the company, at either terminus of the through line, to contract for a through rate of fare, and their pro-rating or dividing the amount agreed on, shows an agency, and, in one sense, a partnership.
    The Erie Company was liable, as a common ca/rrier, umder the laws of New Yorh, 'and could have been easily made to respond for all damages arranged and paid for it at Cincinnati. See in Bouney’s little work on Railway Carriers, 179, 180, an extract from the Railway Statutes of New York, Acts for 1847, chapter 270. This fixes the liability of the Erie 'Company to the plaintiff in error.
    Redfield, in his work on Common Carriers, sec. 196, says : “ The English courts hold that it is not ultra vimes for a railway company to contract to carry beyond its own route by sea or by coach.” (Wilby v. West Cornwall Railway, 2 H. & N. 703.) “And where the party contracted with the company ao carry beyond their own line upon a connecting road, but signed a note, without noticing its contents, only extending to the point of departure from the first line, it was held that parol evidence of the extended contract was admissible, as it only supplemented the writing.” (Malpas v. Southwestern Railway, Law Rep., 1 C. P. 336. See also sec. 194, Redfield on Common Carriers, p. 159.) In Noyes v. Rutland and Burlington Railway, 27 Verm. 110, the court, in affirming the same doctrine, said: “ It seems to le now well settled that railway companies, as common carriers, may malee valid contracts to carry leyond the limits of their own road either ly land or water, and thus become liable for the acts and neglects of other carriers in no sense under theim con-troll This doctrine is fully sanctioned by Redfield on Carriers, after an examination of all the authorities, secs. 194 and 197, p. 161; also sec. 183, p. 151; and see cases cited in notes under this last section. The same doctrine is sustained by the following cases: Muschamp v. Lancaster and Preston Junction Railway, 8 M. & W. 421; Weed v. 
      Saratoga and Schenectady Railway, 19 Wend. 534; Farmers' and Mechanics' Bank v. Champlain Transportation Company, 23 Verm. 186.
    4. As to the ground of the defence, that the railroad com pany was protected from liability by the special conditions of exemption in' the bill of lading, I insist, in the first place, that, taken in an unqualified sense, they are illegal and invalid. They do in terms exempt the plaintiff in error from even liability for losses by negligence on its own road between Cincinnati and Dayton. And more than this, they provide against the liability of the companies owning the connecting lines, for losses on their own road, respectively, even by negligence. This is an open violation of the well-settled law of Ohio, and as such these conditions, being unlawful and against public policy, should be wholly rejected as invalid. The company, as a common carrier, had no legal capacity to contract for an exemption from the consequences of its own negligence or malfeasance, and much less for that of the other compames. And the terms of a contract which are unlawful or against public policy in part or for one purpose, must be rejected as void entire, or for all purposes.
    But if these special conditions of' exemption be permitted to stand as valid for any purpose or to any extent, it must be on the ground of an interpretation, that they were intended simply to exempt the companyfrom liability as common carriers so far as that liability made it an insurer against losses from accident merely, where there was no negligence. If these conditions admit of such an interpretation, and it can be declared that they were so intended, theymay be permitted to stand pro tanto. But if they were intended in part as a protection for negligence or misfeasance, they should be rejected entirer-
    
      Jones v. Voorhes, 10 Ohio, 145; Davidson v. Graham, 2. Ohio St. 131; Graham & Co. v. Davis & Co., 4 Ohio St. 375; Welsh v. The Pittsburg, Fort Wayne, and Chicago Railroad Company, 10 Ohio St. 65; York Company v. Central Railroad, 3 Wallace, 113; Place v. The Union Express Company, 2 Hilton, 19; Chouteaux v. Leech & Co., 
      18 Penn. St. 224; Ang. and Ames on Corp. 249; Bank of Augusta v. Earl, 13 Pet. 521; Redfield on Railways (2d Ed.), p. 99, sec. 12; Hodges on Railways, 615; Muschamp v. Lancaster and Preston Railroad Company, 8 M. & W. 421; Watson v. Ambergate, Not. and Boston Railway, 3 Eng. L. and Eq. 497; Scotthorn v. South Staffordshire Railway, 18 Eng. L. and Eq. 553; Wilson v. York, N. and B. Railway, 18 L. and Eq. 557; Crouch v. London and N. W. Railway, 28 Eng. L. and Eq. 287; Bristol and Exeter Railway v. Collins, 7 H. of L. Cas. 194.
    "Where a common carrier, whether a railroad company or other kind of common carrier, receives goods at one terminus of a line of transportation destined for the other terminus of the line, and consigned to parties there, such carrier’s responsibility continues until the delivery of the goods, and he is answerable for losses occurring at any point on the line, although such losses may be on an intermediate line of railway or steamboat that does not belong to it, and is not controlled or operated by such common carrier. Besides the English authorities, which are full and decided in support of this doctrine, it is sustained by tbe following American cases: Wilcox v. Parmelee, 3 Sandf. Superior Ct. 600; Noyes v. Rutland and Burlington Railroad Company, 1 Williams, or 23 Verm. 110; Perkins v. Portland, Saco, and Portsmouth Railroad Company, 47 Maine, 573; Fairchild v. Slocum et al., 19 Wend. 329; Weed & Weed v. The Saratoga and Schenectady Railroad Company, ib. 534; Najac v. Boston and Lowell Railroad Oompany, 7 Allen, 329; a case in point in 24 Ill., 332; F. & W. Railroad Company v. Hanna, 6 Gray, 539; Choteaux v. Leech, 18 Penn. St. 224; Hart v. The Rensselaer and Saratoga Railroad Company, 4 Selden, 37; Kyle v. Laurens Railroad Company, 10 Rich. (S. C.) 382; The English case of Bristol, &c., Railway v. Collins, 5 H. & N., 969 (fully in point); Burtis v. Buffalo, &c., Railroad Company, 24 New York (10 Smith), 269; John v. Sautwood, 25 Wend. 660; 2 Redfield on Railways, 108, sec. 12; Wilby v. The West Cornwall Railway, 2 H. & N. 702; Hayes v. South Wales Railway Company, 9 Ir. Com. L. 474; Webber v. Great Western Railway Company, 3 H. & C. 771; Illinois Central Railroad Company v. Johnson, 34 Ill. 389; Ang. on Common Carriers, 204, sec. 227; McGregor v. Kilgore, 6 Ohio, 143; Whiteside v. Russell, 8 Watts & Searg. 44; Dunseth v. Wade, 2 Scam. 288; Broadwell v. Butler, 6 McLean, 296; Carr v. Steamboat Michigan, 27 Missouri, 196; Redfield on Carriers, 209, sec. 268.
    The liability of the shipping company as a common carrier continuing to the place of delivery at the end of the route, it was not competent for the company to exempt itself from liability for loss by negligence, on any part of the through line.
    Again, it is well settled that if a common carrier is to be allowed to limit his liability by special contract at all, the stiprdation must be a fair and reasonable one / and the burden of showing its reasonableness rests on the carrier. (Redfieldon Railways, vol. ii. p. 97, and cases cited in note 9.)
    I insist, that the stipulations for exemption from liability in the bill of lading in this case are most unjust, unreasonable, and impracticable on their face, and therefore wholly void.
   Welch, J.

The real question in this case is, What was the contract between the parties — did the company agree to carry the apple butter all the way to New York, or only to Dayton? Upon either construction of their contract, the law fixing the rights and liabilities of the parties seems to be reasonably well settled.

If the contract was to carry to Dayton only, there can be no pretence that it was not fully performed on the part of the railroad company. The goods were carried to Dayton in due time, and there safely delivered into the hands of another company, according to agreement.

On the other hand, if the contract is to be held as an undertaking to carry the goods to New York, what are the rights and liabilities of the parties ?

It does not seem to be denied that the company had the legal capacity to make such a contract, or which is the same thing in effect, that it is estopped from denying its capacity to do so. That such is the settled law seems to be now well established. (2 Redf. on Railways, p. 9, sec. 152; id. p. 161; M. & W. 421; 21 Conn. 570; 27 Verm. 399; id. 110.)

It is equally well settled, in Ohio at least, that a common carrier cannot by any stipulation in his contract, or by any notice to the other party, exempt himself from liability for negligence or default of himself or agents. (2 Ohio St. 131; 4 id. 375; 10 id. 65; and C. P. & A. R. R. Co. v. Curran, (decided at the present term of this court). He may, by such means, exempt himself from liability as insurer of the property, against accidents and unavoidable losses, but not against those arising from the acts or omissions of himself or his servants. It is quite clear, therefore, that if the company had made a contract to carry to Dayton only, and a similar proviso had been inserted against liability for loss happening on the company’s own road, the proviso would have been void, at least as to any loss occasioned by negligence or default. Now, if the contract is to be regarded as an undertaking to carry to New York, instead of Dayton, why should not the same rule of law apply % The same reasons of public policy seem to exist. The only éssential difference is, that in the latter case the distance covered by the undertaking is increased, and the number of the carrier’s agents is multipied ; and perhaps I might add, the company is assuming to exercise doubtful .powers in making the contract. It is difficult to see any reason in either of these facts for relaxing the rule of law in favor of the latter description of contract. Besides, if this was in fact a contract to carry the goods to New York, the company, in making it, was not and could not be acting as agent for any other carriers, and no one would be bound by it but itself. In that case the company’s delivery of the goods to the next carrier at Dayton would create no contract, express or implied, between that carrier and the consignor, and would give the latter no right of action against the former, because the delivery would not be made as agent of the consignor. Between the consignor and the second carrier there would 'be, in that case, no connection. As between them the goods, though in fact in the hands of the second carrier, would be in law in the hands of the original party; and if the consignor had no remedy against the original party, he would have no remedy against any one. The same rule of public policy, which denies the right of exemption from loss arising from fault or negligence, and the same reasons supporting it, apply equally to such eases, as it does to contracts for carriage upon the carrier’s own road. Were the law otherwise, it would be in the power of one company to monopolize the business on the road of another, and thus escape the obligation and duty to the public of conducting that business with proper skill and care, which it was the object of the rule in question to enforce.

We think, therefore, that if the contract in question is to be regarded as an undertaking to carry the goods to New York, the company is liable for this loss. It occurred at Salamanca, while the goods were m transitu upon the line covered by the contract, and resulted from the negligence and default of the employees of the plaintiff in error, who was the carrier for the whole route, and who was the only party contracting with the owners, the defendants in error.

But what was the contract? Was it an undertaking to carry to New York, or was it an undertaking to carry to Dayton ? The parties have put their contract in writing, in the form of a receipt and agreement. This written contract determines their rights, and cannot be contradicted by parol proof. (4 Ohio, 334; 4 Ohio St. 362.) It acknowledges the receipt of the goods, to be transported Toy the Omeinnati, Hamilton, a/nd Dayton and Dayton de Michigan Maáhroad Oonypany to its termvnus, and there delivered;” with a proviso that the company’s liability shall cease upon such delivery. Language could not be much plainei\ Surely this bill of lading, apart from the mere description of the goods, imports that the undertaking was to carry the goods no farther than to Dayton, the terminus of the companys’ own railroad, and to assume the liability of carriers only to that point.

Is this plain reading of the written contract to be contra-dieted and set aside by the fact that the goods were destined and marked for New Tork, and were described as being so marked in the bill of lading ? It was surely in the power of the parties, notwithstanding the destination of the goods, to make an express agreement that the company should only take them to Dayton. And had they undertaken to make such an agreement, they could hardly have embodied it in language more plain and direct than that they have used. No case is shown, English or American, where an explicit contract like this has been held to be overruled or varied, by the simple fact that the goods were received with the knowledge that they were consigned to a more distant point than that specified in the contract. The cases cited by counsel, and the argument founded upon them, are merely to the effect that such fact is sufficient frvma-fojcie evidence of a contract to carry the goods to their ultimate destination. This is now apparently settled as the law in England. The American cases are conflicting upon the question. But all the cases, so far as known to us, seem to proceed upon the admission that it can be no more than $rima-fac,ie evidence; that it is competent for the parties, by express stipulation or otherwise, to negative the presumption. It is, therefore, only in the absence of such express agreement that the question can ai’ise. We need not decide this question now. For if it be admitted that the consignment marks upon the goods are, in the absence of a contrary agreement, prima-faoie evidence of the distance they are to be carried, the answer in the present case is, that there was such contrary agreement.

The objection that the bill of lading was not signed by both parties is without validity. It is enough that it was signed by the company, and accepted and acquiesced in by the other party, and that there was no fraud, deceit, or mistake accompanying the transaction. There are abundant authorities to this effect.

Judgment reversed, and cause remanded.

Bkinkeehoff, .0.J., and Scott, White, and Day, JJ., concurred. 
      
       Ante, p. 1.
     