
    (First’Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1893.)
    Before Smith, Swing and Cox, JJ.
    THE L. & N. RAILROAD COMPANY v. LEVI & OTTENHEIMER.
    'Loss of freight — Undervaluation and reduced freight as defense— Failure of hill of lading to set out contract—
    Where in an action for damages for the loss of certain freight by negligence of the railorad, the railroad sets up as a defense that the gdods were shipped under an undervaluation at a reduced rate of freight, but the bill of lading contains no limitation on account of any reduction of freight charges, such defense can not be sustained.
    Error to the Court of Common Pleas of Hamilton county.
   Swing, J.

We think the judgment should be affirmed. Plaintiff’s action was for the loss of a barrel of whiskey valued at $78, which was alleged to have been received by the defendant below as a common carrier tc be carried from McKenzie, T9nn., to Cincinnati, 0., and while in the possession of the defendant was lost. The defendant admitted having received the barrel of whiskey, and the loss thereof, but say they received it as of the value of seventy-five cents a gallon, or $28.36 fcr the barrel; that it was shipped under a reduced rate of twenty-five cents per hundred pounds; that whiskey of greater .value was to pay forty cents per hundred pounds; and defendant admitted liability for the said amount of $28.36, whioh it was willing at all times to pay plaintiffs.

We think the defendant has failed in its proof to sustain the allegations of its answer. The bill of lading, or contract of carriage, does not support the defense set up. No rate is given. The value is placed at seventy-five cents a gallon, but there is no agreement or contract as to any limitation on account of loss or damage, by reason of any reduction of freight. It is a mere statement as to value, and no reason is given why it was placed in the contract or bill of lading; so in our opinion it is not neoessaryfor us to pass on the question, which was argued before us, at length, viz., whether a contract of a common carrier limiting its liability would be sustained, when the loss was occasioned by its own negligence, as there was no sucü contract there.

Harmon, Colston, Goldsmith & Hoadly, for Plaintiff in Error.

Yaple, Moss & McCabe, for Levi & Ottenheimer.

"Furthermore, the judgment should be sustained as far as alleged errors that occurred were brought up on the motion for a new trial, as the bill of exceptions does not bring up all of the evidence. It is true that it purports to do so, but an examination cf the bill discloses the fact that quite a lot of matter introduced as evidence was not brought into the bill or made part of the record. We find no errors of the court in the admission or exclusion of evidence.

The judgment will therefore be affirmed.  