
    *The Southern Express Company, plaintiff in error, vs. S. & J. Palmer & Company, defendants in error.
    (Atlanta,
    January Term, 1873.)
    1. Express Companies — Pleading—Joinder.—An action against a common carrier for negligence in the performance of his duty as a carrier, under a contract to carry, is an action upon the case,, ex delicto, and may be joined with a count in trover or trespass vi et armis, but if the action be for negligence alone, under the contract to carry, or if the counts in trover or trespass vi et armis, be abandoned, the plaintiff cannot repudiate the contract, either expressed or implied, under which the carrier received the goods, and recover for an unlawful taking.
    2. Same — Same—Trespass—Recovery.—A carrier who receives goods to carry from one not authorized to deliver them to him, is a "trespasser, and may be sued in trover for the goods, as any other illegal taker may be; but if a suit be brought against him as a carrier, charging him with having taken the goods under a contract with the plaintiff’s agent, and with neglect of duty under the obligations of that contract, and there be no count for a wrongful taking or conversion, the plaintiff can only recover for a brekch of duty, under the contract, as made with his agent.
    3. Same — Contract—Principal and Agent. — If one adopt a contract made with his agent, who had no authority to make such a contract, he must adopt it entirely; he cannot adopt a part and repudiate a part.
    4. Same — Same—Action for Negligence — Liability.—The contract in the record between the Adams Express Company and the Southern Express Company is an express contract, signed by both parties, in which it is specifically agreed that the Southern Express Company should not be liable for “river risks” on any goods delivered to it for carriage by the Adams Express Company, and if the owner of the goods sue the Southern Express Company, not as a tortious taker, but as a carrier under that contract, for negligence, by which the goods were lost, he must abide by its terms. Aliter, if he sue in trover or in trespass for an illegal taking or conversion.
    5. Same — Same.—The case of the Southern Express Company v. Shea, 38 Georgia Reports, 519, and the case of the Southern Express Company v. Cohen & Menko, .45 Georgia Reports, 148, are, as to the facts and the pleadings, similar to the present case, and must control it.
    6. Sáme — Same—Same—Statute of Limitations. — If an action upon the case, against a common carrier for negligence, under his contract, be brought within four years, and, after four years have elapsed, the plaintiff amend his writ by adding a count in trover, and a count for trespass vi et armis: Query — whether the new counts are barred?
    Pleading. Contracts. Negligence. Ratification. Statute of limitations. Before Judge Johnson. Muscogee Superior Court. May Term, 1873.
    *S. & J. Palmer & Company brought case against the Southern Express Company for $1,000 00 damages. The defclaration contained the following allegations: That on October 26th, 1865, plaintiffs, by their agent, the Adams Express Company, delivered to the defendant, at Savannah, Georgia, a box containing goods and chattels of the value of $426 25, to be carried to Columbus, Georgia, and there to be delivered to plaintiffs. That the defendant, not regarding its duty as a common carrier, but fraudulently intending to defraud and injure plaintiffs, did not convey said box, with its contents from Savannah to Columbus, nor, at Columbus, deliver the same to plaintiffs. That the defendant, on the contrary, conducted itself so negligently and carelessly, in reference to said box, that the same was lost to the plaintiffs at Savannah, on the day and year aforesaid.
    The declaration was filed on October 23d, 1866. On May 28th, 1872, the declaration was amended by the addition of two counts: one in trespass, and one in trover.
    The defendant pleaded the general issue, the statute of limitations, and specialty, that it received the said box and its contents from the Adams Express Company, under a special contract with said company, with the terms of which contract he has fully complied. • '
    The evidence made the following case: On the 23d day of October, 1865, the plaintiffs purchased from White, Whitman & Company, in New York, goods to the amount of $426 25, which were delivered to the Adams Express Company on the’ 25th day of the same month, for transportation to Columbus, Georgia, there to be delivered to the plaintiffs, and the following receipt taken:
    “Adams Express Company,
    “Great Eastern, Western and Southern Express Forwarders.
    “No. 1. New York, October 25th, 1865.
    “Received of White, Whitman & Company, one case, ...... dollars, marked S. & J. Palmer & Company, Columbus,. Georgia.
    *“Which it is mutually agreed is to be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation.
    “It is part of the consideration of this contract, and it is agreed that the said Express Company are forwarders only, and are not to be held liable or responsible for any loss or damage to said property while being conveyed by the carriers to whom the same may be by said Express Company entrusted, or arising from the dangers of railroads, ocean or river navigation, steam, fire in stores, depots, or in transit, leakage, breakage, or from any cause whatever, unless, in every case, the same be proved to have occurred from the fraud or gross negligence of said Express Company or their servants; unless specially insured by it and so specified on this receipt, which insurance shall constitute the limit of the liability of the Adams Express Company in any event; and if the value of the property above described is not stated by the shipper at the time of shipment and specified in this receipt, the holder hereof will not demand of the Adams Express Company a sum exceeding fifty dollars, for the loss of, or damage to each package herein receipted for. Nor shall the said company be held responsible for the safety of said property after its arrival at its place of destination.
    . “And if the same is entrusted or delivered to any other Ex
      
      press Company or agent, (which said Adams Express Company are hereby authorized to do,) such company or person so selected shall be regarded exclusively as the agent of the shipper or ozvner, and as such, alone liable, and the Adams Express Company shall not be in any event responsible for the negligence or non-performance of such company or person; and the shipper and owner hereby severally agree that all the stipulations and conditions in this receipt contained shall extend to, and inure to the benefit of each and every company or person. In no event shall the Adams Express Company be liable for any loss or damage unless the claim therefor shall be presented to them, in writing, at this office, within thirty days after this date, in a statement to which this receipt shall *be annexed. All articles of glass, or contained in glass, or any of a fragile nature, will be taken •at shipper’s risk only, and that the shipper agrees that the company shall not be held responsible for any injury, by breakage or otherwise, nor for damage to goods not properly packed and secured for transportation. It is further agreed that =aid company shall not in any event be liable for any loss, damage or detention caused by the acts of God, civil or military authority, or by insurrection or riot, or the damages incident to a time of war. “Freight ....' For the company,
    (Signed) “R. H. Hammond."
    The Adams Express Company delivered said case at Savannah, Georgia, to the defendant, and it was entered on the manifest of the defendant to go up the- Savannah river to Columbus via Augusta. It was received at Savannah on or about October 30th, 1865. Seven dollars and fifteen cents was to be paid by the plaintiffs to the defendant on the delivery of the case to them at Columbus, Georgia. Three dollars and twenty-five cents of this amount was due to the Adams Express Company for transportation from New York to Savannah, and the balance of the amount would have become due to the defendant for transportation from Savannah to Columbus, Georgia. The case was shipped at Savannah on the steamboat “Savannah,” to.be transported to Augusta. This boat and a large portion of its cargo, including this case, were lost on the Savannah river. The contract between the Adams Express Company and the defendant contained the following provisions:
    “3. That all the goods, wares and merchandise, and other property delivered by said Adams Express Company to the Southern Express Company, shall be received by the latter company upon the same terms and conditions as are expressed in the printed receipts, used and issued by it, upon the receipt of similar shipments from the public generally, and upon no other terms and conditions. And that no other or greater liability shall attach to the said Southern Express Company *upon the delivery to it of any such property, than such as arises " under such printed receipts. The provisions of this stipulation shall take effect on each delivery of property hereunder in like manner as if one of such printed receipts had been issued to the said the Adams Express Company on such delivery.”
    “5th. The phrase, ‘printed receipts/ as herein used, shall include the forms now in use by the said two Express Companies and any subsequent modification thereof, that either company adopts. The terms and times of settlement between the two Companies shall remain as heretofore agreed upon.”
    The jury returned a verdict for the plaintiffs for $650 00. Whereupon the defendant moved for a new trial upon the following grounds to-wit:
    1st. Because the Court erred in overruling the motion of defendant to strike the second and third counts in the declaration on the ground of misjoinder.
    2d. Because the Court erred in the following charge to the jury: “Did the Southern Express Company ever receive these goods ? Did it receive these goods as the goods of the plaintiffs, and were they lost and that loss not explained ? Then it is liable to the plaintiffs for the loss. If it received these goods from the Adams Express Company as a common carrier, as the goods of the plaintiffs, to be delivered to plaintiffs in the city of Colum-' bus, then it received them as a common carrier liable to plaintiffs, if they were lost through the neglect of the Company, and it matters not what the terms were between the Adams and the Southern Express Company. The receipt says it may be delivered, and when plaintiffs shipped, they authorized the delivery and the taking by the Southern Express Company from the Adams Express Company was the same as if the taking had been directly from Palmer. If the evidence is that the defendant received the goods from the plaintiffs, or from the Adams Express Company as the goods of plaintiffs, they are bound if the goods were lost by their neglect.”
    3d. Because the Court erred in the following charge to the *jury: “The defendant is sought to be made liable for the loss of the goods, and its liability to the plaintiffs does not depend on the contract it may have made with the Adams Express Company, but depends upon the fact whether it did receive them as the property of the plaintiffs and the terms upon which the defendant so received them, and the evidence will be looked to by the jury, to determine whether the defendant received them and the terms and conditions upon which they were received, and among these terms and limitations the jury will determine from the testimony, if defendant received them, whether the defendant did by express contract limit its liability for loss to the neglect of itseif or agents or fraud on their part. If, then, the defendant received these goods to be delivered to the plaintiffs in Columbus, and the goods were lost while in its possession, the presumption of law is that they were lost through the neglect of defendant, and unless it is shown by the proof in the case that they were lost without the neglect of the defendant, defendant is liable to the plaintiffs for the value of the goods when so lost. Neglect by tire carrier covers any loss unless it happens by the act of God or the public enemies. If the loss happened by any other cause, though the defendant be not in fault, it will not be excused thereby.”
    4th. Because the Court erred in refusing to charge the jury as follows: “The Adams Express Company, under the receipt
    read in evidence, is bound to the plaintiffs for the safe delivery of the goods at Columbus, and not the defendant.”
    5th. Because the Court erred in refusing to charge the jury as follows: “If the Adams Express Company delivered the
    goods to the defendant under an express contract between the Adams Express Company and the defendant, the liability of the defendant is to the Adams Express Company, and not to the plaintiffs.”
    6th.- Because the verdict of the jury is contrary to the following charge: “If the plaintiffs adopt the act of the Adams Express Company in delivering the goods to the defendant, under an express contract between the Adams Express Company *and the defendant, then the defendant is liable under that contract, upon a suit brought on that contract, and is entitled to all the defenses provided for by that contract, and if loss by water is one of the defenses provided for, and these goods were lost by water, without the neglect of defendant, defendant is not liable. If the defendant received these goods from the Adams Express Company, under a contract with the Adams Express Company, the Adams Express Company could not substitute the plaintiffs in the contract instead of the Adams Express Company, without the consent of the defendant. A party making a contract has a right to elect with whom he will contract.
    “If more than four years have elapsed since the conversion or trespass-complained of, prior to the filing of the amended declaration in which those two counts are embraced, then the plea of the statute of limitations filed in this case is a bar to the counts in trover and trespass.”
    7th. Because the verdict was contrary to the law and the evidence.
    The motion was overruled, and the defendant excepted upon each of the grounds aforesaid.
    R. J. Moses, for plaintiff in error,
    cited: The So. Ex. Co. vs. Shea, 38 Ga. R., 521; Herman on Estoppel, 343; Mosher & Co. vs. The So. Ex. Co., 38 Ga. R., 37; Cohen & Menko vs. The So. Ex. Co., 45 Ga. R., 148.
    Henry R. Benning, for the defendants.
    1st. An action on the case is an action ex delicto: 1 Chitty’s Pleadings, 133, 134; 3 Black. Com., 122.
    2d. A common carrier may be sued in case or assumpsit: 1 Chitty’s Pleadings, 134-5-8; 3 East. R., 62; 1 Tidd’s Pr., 10; Code, secs. 2904, 2905, 2975.
    3d. The owners elected to sue in case: 2 Chitty’s Pleadings, 650-1-2; 2 Rord Raymond, 909; Ibid., 1516; 6 B. and C., 268; 1 Durn. and E.. 273: 1 Kelly R.. 261.
    
      4th. Defendant was estopped from saying it was not acting as a common carrier; Coke on Ditt, 148.
    92 *5th. The plaintiffs ratified and adopted the act: Story’s Ag., 242, 244, 213; 13 East., 274.
    6th. Where there are a succession of wrong-doers, the plaintiffs may elect which to sue: Bac. Ab., B; 9 Cush., 24.
    7th. Shea’s case was treated as an action ex contractu: 13 Ga. R., 261.
    8th. The limitations in the receipt are void: The So. Ex. Co. vs. Purcell, 37 Ga. R., 103.
   McCay, Judge.

The facts of this case are precisely-the same as appeared in the case of the Southern Express Company vs. Shea, 38 Georgia, 531, and in the case of the Southern Express Company vs. Cohen & Menko, 45 Georgia, 148. It may be added, too, that the form of the action is also the same, to-wit: an action upon the case against the Express Company as a common carrier, for negligence. It would seem to follow, that this case must take the same course as did those cases. The decision in the case of Shea vs. The Southern Express Company necessarily follows from the unanimous decision of this Court in Purcell’s case, 37 Georgia. 103, and in the two cases in the 36 Georgia, 532, 635. This Court in those cases had, by an unanimous decision, held that a common carrier, accepting, as such, goods to be delivered at a distant point, was bound to deliver them at that point, at all events, unless prevented by the act of God or the public enemy, and that though the carrier might, by express contract with the shipper, limit this liability, he could not do it by entering such limitation on or in his receipt for the goods. It was the’logical result of these decisions that Shea had no right of action against the Southern Express Company as a common carrier under the facts as they appeared in the record. The contract to carry was made by the Adams Express Company, and no right of action on that contract existed in Shea vs. The Southern Express Company. The action in Shea’s case, as in this, was, it is true, an action on the case. That is, it was an action for negligence in the performance of a duty which it was charged *it had undertaken. But however the action sounded, it had its foundation in, and was dependent for its support upon either an express or implied contract to perform the duty alleged to have been neglected. Indeed every action against a common carrier, as such, for negligence, must of necessity be based upon either an express or implied contract for diligence.

The declaration in Shea’s case and in this, is against the Southern Express Company as a common carrier; it alleges that the defendant undertook to carry, etc., that it neglected the duty it took upon itself, by means of which' the plaintiff was injured. And this is so in all actions of this character. Actions against tradesmen, doctors, innkeepers for negligence, are all based on contract, either express or implied, and though they are called actions on the case, they require for their support, proof of such a state of facts, as shows either an express or implied undertaking, contract, by the defendant, to be skillful and diligent. An action against a common carrier, as such, for negligence, must fail if the proof show* a want of this fundamental undertaking or contract. The very bringing of the action presupposes that the carrier has the goods properly under a contract to perform a specified duty towards them, and the ground of the action is that by neglecting such duty he has damaged the plaintiff. The tort, which is the cause of action, is not that he took the goods wrongfully, but that having them under contract, to be diligent in carrying them, he has neglected that duty. To sustain the action in Shea’s case, and in this, to-wit: an action for negligence, it was necessary to show either an express or implied contract of the Express Company with the shipper to be diligent. The contract shown in both cases, was not with the Southern Express Company at all, but with the Adams. And the majority of the Court in the Shea case, held that for this reason the plaintiff could not recover. The present Chief Justice in that-case, said that the defendant was not sued as a tort feasor. What he meant, as the whole context shows, was, that he was not sued .for a wrongful taking. The action there as well as *here, was case, for negligence, which, as we have shown, necessarily assumes that the defendant was in possession lawfully, under a contract to be diligent. Had the action been in trover or trespass for wrongful taking, and the proof had shown that the Southern Express Company, without authority took or got into possession of plaintiff’s goods, it could' have made no reply, but the production of the goods or payment of the damages. Even the act of God would have been no excuse.

But in the Shea case and in this, the very foundation of the action — the allegations in the declaration — are that the defendant got the goods under a contract, and the complaint is, that having undertaken a duty with regard to them, it has neglected it and thereby damaged the plaintiff. The majority of the Court in the Shea case held, that as the action was for the neglect of the Southern Express Company to perform as it had undertaken, to-wit: with the care and diligence of a common carrier, and as there was no proof of any contract, either express or implied, by the Southern Express Company, the plaintiff must fail, and that Judge Cole’s charge as to the liabilities of a tort feasor was improper under the allegatipns. As to myself, whilst I felt bound by the decisions in Purcell’s case, and the other common carrier cases, in 36 and 37 Georgia, I was of the opinion that Shea had a right, if he pleased, to adopt the contract made by the Southern Express Company with the Adams. Such a contract had undoubtedly been made, and the goods had been received by the Southern Express Company under it. It was my opinion that the owner of the goods had the right to adopt this contract — to ratify the act of his assumed agent, even though, at the date of the contract, he had given no such authority. The Adams Express Company had assumed to act as the agent of the owner, and as such, the Southern Express had contracted with the owner, through the Adams, to carry. True, the agent had no such authority. But the authorities are nhmerous that if one profess to act as my agent, and contract as such with a third person, I may, if I please, ratify the contract and sue upon it in my own name: See the cases quoted in 38 *Georgia, 530. But if I do so I must ratify the contract as it is. It is contended that the contract made by the Adams with the Southern does not except river risks, and that I was mistaken in supposing the adoption of it would have done Shea no good. I am free to say that I, at that time, did not carefully examine the contract between the companies. It was admitted in the argument, by both sides, that, under it, the Southern was not liable for river risks, and I did not examine it closely for that reason. But I have now done so, and that, too, after the very elaborate and ingenious argument of Judge Benning as to its meaning. I still think it is an express contract, exempting the Southern Company from river risks. It is signed by both parties, and in it there is an express stipulation that the Southern shall only be bound according to the terms of the receipts then in use. On looking at those receipts, it appears that river risks are excepted. True, this Court has held that, as against shippers who do not sign the receipts, these limitations of the liability of the carrier are void. But if we are to treat the Adams Express as the agent of Shea, it follows that, as the Adams did sign as well as the Southern, that Shea, the owner, the ratifier, the principal, signed by his agent, and there is a contract. The agent knows what is in the receipt; he agrees to be bound by its terms. He stands as did Matthews, in the case of Wallace vs. Matthews, 39 Georgia, 617. The count in trover was stricken out, and we say nothing about that. We are not, at present, prepared to say whether the statute would bar it of not. Perhaps, as this action, as it stands, is an action on the case, sounding in tort, and as a count in trover might have been joined, the writ may be amendable by adding such a count, even after four years, or after 1st January, 1870. But we express no opinion, as the point is not made, and there has been no argument on it.

Judgment reversed.  