
    Nicholas H. Quinn, Respondent, v. The Pennsylvania Railroad Company, Appellant.
    Fourth Department,
    July 12, 1906.
    Evidence—pleading — when carrier may prove contract limiting liability under general denial.
    When a plaintiff, suing a carrier for injury to goods, alleges a contract to carry safely and a breach thereof, the defendant under a general denial may show that the real’contract limited his liability. Such contract for a limited liability is not new matter which must be pleaded, but it may be shown under the general denial of the contract as alleged by the plaintiff.
    Appeal by the defendant, The Pennsylvania Railroad Company, from a judgment of the County Court of Allegany county, entered , in the office of the clerk of the county of Allegany on the 23d day of February, 1906, affirming the judgment of a justice of the peace entered upon the verdict of a jury for ninety dollars.
    
      Frank Rumsey, for the appellant.
    
      Harry E. Keller, for the respondent.
   Spring, J.:

The plaintiff commenced his action in Justice’s Court to recover for injuries sustained by thirty-two head of cattle shipped by him at Cuba, FT. Y., on the Erie railroad to Lancaster, Penn., and which were delivered to the defendant as a common carrier at Harrisburg. The complaint, after setting forth these facts and including the delivery of the cattle, proceeds: “ Which cattle defendant, for a valuable consideration agreed upon, agreed it would safely, securely and expeditiously, within a reasonable time thereafter, carry and convey * * * from said station at Elmira, JY. Y., to said flace of Lancaster, Pennsylvania, and would deliver the same at Lancaster, Pennsylvania, to this plaintiff. That notwithstanding said agreement and in violation of thei/r duty as common carriers, the said defendant so negligently and wrongfully t/i'ansported said cattle from Elmira, JY. Y., to Lancaster, Pennsylvania, that three head of said cattle when £hey arrived at Lancaster, Pennsylvania, on the 8th day of November, 1904, were nearly dead and practically worthless as the immediate and proximate result of the negligent acts of the defendant, and that the remainder of said cattle, when they arrived at Lancaster, Pennsylvania, on Nov. 8, 1904, were all injured more or less owing to the negligence on the part of said defendant.” It then alleges other facts imputing negligence' to the defendant, particularly an unreasonable and negligent' delay in transporting the cattle. The answer was a general denial.

Upon the trial the plaintiff proved the delivery of the goods to the Erie Railroad Company at Cuba, following their course along day by day until they were delivered to the defendant, a common carrier, at Harrisburg, Penn., at three o’clock in the afternoon of November seventh. The cattle were then unloaded by the defendant, fed and watered and placed back in the car about eight-thirty that evening. The proof shows that at that time they were in fair condition, except one had fallen down, but did not seem to be injured to any extent.. The distance from Harrisburg to Lancaster is thirty-six miles, and the car did not reach that place until about eight o’clock in the evening of the following day, so that the cattle were twenty-four hours in the custody of the defendant in going these thirty-six miles. When they were unloaded at Lancaster three of them were badly bruised and in jured and the others were in bad condition, and the plaintiff recovered ninety dollars.

Upon the cross-examination of the plaintiff, and in various other ways, the defendant attempted to show that a written agreement had been entered into, at the time of the shipment of the cattle, limiting the liability of the Erie Railroad Company and each connecting carrier, which, of course, included the defendant. The reception of this agreement was objected to on several grounds, among others that it was inadmissible under the pleadings. The objection was sustained and the contract was excluded. It was, however, marked for identification and appears in the record, and is a written agreement regulating the transportation of the cattle and modifying materially the stringent obligation otherwise imposed upon the defendant as a common carrier. The exclusion of this testimony is the only question argued on this appeal.

The evidence should have been received. The complaint alleged that the cattle were shipped pursuant to an agreement, and assumed to state in a general way its purport. The general denial put in issue this agreement. It was not necessary to allege affirmatively the text of the agi’eement as the defendant interpreted it. The defendant disavowed the agreement contained in the complaint, and that allegation permitted it to show the true agreement.

The-plaintiff, ignoring the contract, endeavored to make his case by proving facts which tended to establish the liability of the defendant as a common carrier. As soon as the fact appeared that the rights of the parties had been fixed by contract, the defendant was entitled to have that instrument in evidence.

If a plaintiff brings an action for services in one count setting up an agreement, and another on a quantum meruit, and attempts to prove his case under the latter count, the defendant may establish the agreement, though his answer be a general denial. This would be true if the complaint was wholly on the quantum meruit. The agreement is not new matter, but tends to disprove the plaintiff’s case and goes to the root of the causé of action. The gist of the complaint is an agreement, and it is always competent under a general denial to challenge the allegations of the complaint by facts tending to contradict them. As was said in Knapp v. Roche (94 N. Y. 329, 333): It is always competent to prove under a general denial any facts tending to controvert the material affirmative allegations of a complaint.”

The error was substantial and a reversal is necessary.

The judgment of the County Court and of the justice of the peace should be reversed, with costs and disbursements of this appeal, and the costs in the court below.

All concurred.

Judgment of County and Justice’s Courts reversed, with costs in this and the County Court.  