It may be remarked, in the first place, that the stipulation is not a conventional limitation of the right of the carrier's employer to sue. He is left at liberty to sue at any time within the period fixed by the Statute of Limitations. He is only required to make his claim within ninety days, in season to enable the carrier to ascertain what the facts are, and having made his claim. he may delay his suit.

tions assumed by common carriers, and notwith- | ployer at the time of his accepting goods for standing the reluctance with which modifica transportation, provided the limitation be such tions of that responsibility, imposed upon them as the law can recognize as reasonable and not by public policy, have been allowed, it is un- inconsistent with sound public policy. This doubtedly true that special contracts with their subject has been so fully considered of late in employers limiting their liability are recognized this court that it is needless to review the auas valid, if in the judgment of the courts they thorities at large. In York Mfg. Co. v. Cent. R. R. are just and reasonable-if they are not in con- Co., 3 Wall., 107 [70 U. S., XVIII., 170], it is flict with sound legal policy. The contract of ruled that the common law liability of a coma common carrier ordinarily is an assumption mon carrier may be limited and qualified by by him of the exact duty which the law affixes special contract with the owner, provided such to the relation into which he enters when he special contract do not attempt to cover losses undertakes to carry. That relation the law re by negligence or misconduct. And in a still gards as substantially one of insurance against later case, R. R. Co. v. Lockwood, 17 Wall., 357 all loss or damage except such as results from [84 U. S., XXI., 627], where the decisions are what is denominated the act of God or of the extensively reviewed, the same doctrine is aspublic enemy. But the severe operation of such serted. The latter case, it is true, involved a rule in some cases has led to a relaxation of mainly an inquiry into the reasonableness of an its stringency, when the consignor and the car- exception stipulated for, but it unequivocally rier agree to such a relaxation. All the mod accepted the rule asserted in the first mentioned ern authorities concur in holding that, to a cer- case. The question, then, which is presented tain extent, the extreme liability exacted by the to us by this record is, whether the stipulation common law originally may be limited by ex- asserted in the defendant's plea is a reasonable press contract. The difficulty is in determin- one, not inconsistent with sound public policy. ing to what extent, and here the authorities differ. Certainly it ought not to be admitted that a common carrier can be relieved from the full measure of that responsibility which ordinarily attends his occupation, without a clear and express stipulation to that effect obtained by him from his employer. And even when such a stipulation has been obtained the court must be able to see that it is not unreasonable. Common carriers do not deal with their employers on equal terms. There is, in a very important sense, a necessity for their employment. In many cases they are corporations chartered for the promotion of the public convenience. They have possession of the railroads, canals, and means of transportation on the rivers. They can and they do carry at much cheaper rates than those which private carriers must of necessity demand. They have on all important routes supplanted private carriers. In fact they are without competition, except as between them-made by the bailor, or by the consignee, within selves, and that they are thus is in most cases a consequence of advantages obtained from the public. It is, therefore, just that they are not allowed to take advantage of their powers, and of the necessities of the public to exact exemp tions from that measure of duty which public policy demands. But that which was public policy a hundred years ago has undergone changes in the progress of material and social civilization. There is less danger than there was of collusion with highwaymen. Intelligence is more rapidly diffused. It is more easy to trace a consignment than it was. It is more difficult to conceal a fraud. And, what is of equal im portance, the business of common carriers has been immensely increased and subdivided. The carrier who receives goods is very often not the one who is expected to deliver them to the ultimate consignees. He is but one link of a chain. Thus his hazard is greatly increased. His em ployers demand that he shall be held responsible, not merely for his own acts and omissions, and those of his agents, but for those of other carriers whom he necessarily employs for completing the transit of the goods. Hence, as we have said, it is now the settled law that the responsibility of a common carrier may be limited by an express agreement made with his em

It may also be remarked that the contract is not a stipulation for exemption from responsibility for the defendants' negligence, or for that of their servants. It is freely conceded that had it been such, it would have been against the policy of the law, and inoperative. Such was our opinion in R. R. Co. v. Lockwood. A common carrier is always responsible for his negligence, no matter what his stipulations may be. But an agreement that in case of failure by the carrier to deliver the goods, a claim shall be

a specified period, if that period be a reasonable one, is altogether of a different character. It contravenes no public policy. It excuses no negligence. It is perfectly consistent with holding the carrier to the fullest measure of good faith, of diligence and of capacity, which the strictest rules of the common law ever required. And it is intrinsically just, as applied to the present case. The defendants are an express company. We cannot close our eyes to the nat ure of their business. They carry small parcels, easily lost or mislaid, and not easily traced. They carry them in great numbers. Express companies are modern conveniences, and notoriously they are very largely employed. They may carry, they often do carry hundreds, even thousands of packages daily. If one be lost, or alleged to be lost, the difficulty of tracing it is increased by the fact that so many are carried, and it becomes greater the longer the search is delayed. If a bailor may delay giving notice to them of a loss, or making a claim indefinitely, they may not be able to trace the parcels bailed, and to recover them, if accidentally missent, or if they have in fact been properly delivered. With the bailor the bailment is a single transaction, of which he has full knowledge, with the bailee, it is one of a multitude. There

is no hardship in requiring the bailor to give notice of the loss if any, or make a claim for compensation within a reasonable time after he has delivered the parcel to the carrier. There is great hardship in requiring the carrier to account for the parcel long after that time, when he has had no notice of any failure of duty on his part, and when the lapse of time has made it difficult, if not impossible to ascertain the actual facts. For these reasons such limitations have been held valid in similar contracts, even when they seem to be less reasonable than in the contracts of common carriers.

have been, and in case they had not, of making his claim within seven days thereafter. In the case we have now in hand the agreement pleaded allowed ninety days from the delivery of the parcel to the Company, within which the claim might be made, and no claim was made until four years thereafter. Possibly such a condition might be regarded as unreasonable, if an insufficient time were allowed for the shipper to learn whether the carrier's contract had been performed. But that cannot be claimed here. The parcel was received at Jackson, Tennessee, for delivery at New Orleans. The transit required only about one day. We think, therefore, the limitation of the defendants' common law liability to which the parties agreed, as averred in the plea, was a reasonable one, and that the plea set up a sufficient defense to the action.

Policies of fire insurance, it is well known, usually contain stipulations that the insured shall give notice of a loss, and furnish proofs thereof within a brief period after the fire; and it is undoubted that if such notice and proofs have not been given in the time designated or have not been waived, the insurers are not We have been referred to one case which liable. Such conditions have always been con- seems to intimate, and perhaps should be residered reasonable, because they give the in-garded as deciding that a stipulation somewhat surers an opportunity of inquiring into the cir like that pleaded here is insufficient to protect cumstances and amount of the loss, at a time the carrier. It is The Exp. Co. v. Caperton, 44 when inquiry may be of service. And still more, Ala., 101. There the receipts for the goods conditions in policies of fire insurance that no contained a provision that there should be no action shall be brought for the recovery of a liability for any loss unless the claim therefor loss unless it shall be commenced within a speci- should be made in writing, at the office of the fied time, less than the statutory period of limit- company at Stevenson, within thirty days from ations, are enforced, as not against any legal the date of the receipt, in a statement to which policy. See Riddlesbarger v. Ins. Co., 7 Wall., the receipt should be annexed. The receipt was 386 [74 U. S., XIX., 257], and the numerous signed by the agent of the company alone. It cases therein cited. will be observed that it was a much more onerTelegraph companies, though not common ous requirement of the shipper than that made carriers, are engaged in a business that is in its in the present case, and more than was necesnature almost if not quite as important to the sary to give notice of the loss to the carrier. public as is that of carriers. Like common car- The court, after remarking that a carrier canriers they cannot contract with their employers not avoid his responsibility by any mere genfor exemption from liability for the conse- eral notice, nor contract for exemption from quences of their own negligence. But they may liability for his negligence or that of his servby such contracts, or by their rules and regula-ants, added that he could not be allowed to tions brought to the knowledge of their em ployers, limit the measure of their responsibility to a reasonable extent. Whether their rules are reasonable or unreasonable must be determined with reference to public policy, precisely as in the case of a carrier. And in a case where one of the conditions of a telegraph company, printed in their blank forms, was that the company would not be liable for damages in any case where the claim was not presented in writing within sixty days after sending the message, it was ruled that the condition was binding on an employer of the company who sent his message on the printed form. Wolf v. Tel. Co., 62 Pa., 83. The condition printed in the form was considered a reasonable one, and it was held that the employer must make claim according to the condition, before he could maintain an action. Exactly the same doctrine was asserted in Young v. Tel. Co., 34 N. Y. Sup. Ct., 390.

In Lewis v. R. R. Co., 5 Hurls. & N., 867, which was an action against the company as common carriers, the court sustained as reasonable stipulations in a bill of lading, that "No claim for deficiency, damage or detention would be allowed, unless made within three days after the delivery of the goods, nor for loss, unless made within seven days from the time they should have been delivered." Under the last clause of this condition the onus was imposed upon the shipper of ascertaining whether the goods had been delivered at the time they should

make a Statute of Limitations so short as to be
capable of becoming a means of fraud; that it
was the duty of the "defendant to deliver the
package to the consignee, and that it was more
than unreasonable to allow it to appropriate the
property of another by a failure to perform a
duty, and that, too, under the protection of a
writing signed only by its agent, the assent to
which by the other party was only proven by
his acceptance of the paper."
This case is a
very unsatisfactory one. It appears to have re-
garded the stipulation as a Statute of Limita-
tions, which it clearly was not, and it leaves us
in doubt whether the decision was not rested
on the ground that there was no sufficient evi-
dence of a contract. The case cited from 36
Ga., 532, has no relation to the question before
us. It has reference to the inquiry, what is suf-
ficient proof of an agreement between the ship-
per and the carrier; an inquiry that does not
arise in the present case, for the demurrer ad-
mits an express agreement.

Our conclusion, then, founded upon the analogous decision of the courts, as well as upon sound reason, is that the express agreement between the parties averred in the plea was a reasonable one, and hence that it was not against the policy of the law. It purported to relieve the defendants from no part of the obligations of a common carrier. They were bound to the same diligence, fidelity and care as they would have been required to exercise if no such agreement

had been made. All that the stipulation required was that the shipper, in case the package was lost or damaged, should assert his claim in season to enable the defendants to ascertain the facts; in other words, that he should assert it within ninety days. It follows that the Circuit Court erred in sustaining the plaintiff's demurrer to the plea.

The second assignment of error we need not consider. If it is one that can properly be made, which is at least doubtful, it is unimportant in view of our judgment upon the first.

The judgment of the Circuit Court is reversed. and the cause is remanded for further proceedings, in conformity with this opinion.

Cited-17 Blatchf., 415; 51 Ind., 129; 63 Mo., 319; 54 Miss., 569; 28 Am. Rep., 387; 37 Ohio St., 313; 41 Am. Rep., 505.

THE FIRST NATIONAL BANK OF DE-
CATUR, ILLINOIS, Piff. in Err.,

v.

at thirty days. Permit me to inquire, in case
his drafts for $10,000 or less on Talmadge are
paid, does your letter mean that we may take
his draft again up to the same amt., and so on
for your limit of thirty days? That is to say,
do you guarantee us for thirty days on Fred-
erick's draft on Talmadge, for $10,000.
Yours, Resp'y,

H. C. PIERCE, Cash." (Response).

"Capital paid in, $100,000. First National Bank of Decatur, Illinois. WM. L. HAMMER, J. H. LIVINGSTON,

President.

Cash'r.

DECATUR, Ills., 9, 21, 1869. H. C. Pierce, Cash., St. Louis, Mo.:

DEAR SIR: Your favor of the 18th is received. Yes, we guarantee you on Frederick's draft on Talmadge for $10,000 for thirty days, from Sept. 13, 1869. Yours respectfully, J. H. LIVINGSTON." (First Extension.)

"DECATUR, Ill., 10, 20, 1869,

THE HOME SAVINGS BANK OF SAINT H. C. Pierce, Esq., Cash., St. Louis, Mo.:

Decided Jan. 25, 1875. ERROR to the Circuit Court of the United

Respectfully,

J. H. LIVINGSTON, Cr." Suit was brought in the court below by the The plaintiff declared upon the response defendant in error, to recover for money alleged dated Sep. 21, 1869, and the extensions dated to have been paid by said plaintiff as accommoda-Oct. 20 and Nov. 22 of the same year. The tion indorser of certain drafts for one Frederick. Plaintiff alleged that said indorsements were made in reliance upon a certain letter of credit from the defendant. The whole correspond

ence was as follows:

(Original Letter of Credit.)

"Capital paid in, $100,000. First National Bank of Decatur, Illinois. WM. L. HAMMER, J. H. LIVINGSTON, President.

Cashier.

DECATUR, Ill's, 9, 13, 1869.
H. C. Pierce, Esq., Cash'r, St. Louis, Mo.:
SIR: We beg herewith to accredit with you
P. E. Frederick, Esq., whose drafts on ship-
ments of cattle to J. S. Talmadge & Co., Ch'go.
are herewith guaranteed to the amt. of $10,000
for thirty days from date.

Yours respectfully,
J. H. LIVINGSTON."
(Letter of Inquiry).

'JOSEPH HODGMAN, HENRY S. PARKER,
President.
Vice-President.

H. C. PIERCE, Cashier.

court instructed the jury that the contract was contained in these letters as claimed by plaintiff, and not in the original letter, and that the drafts guarantied were, therefore, not limited to those drawn upon shipments of cattle.

Judgment having been given for the plaintiff, the defendant sued out this writ of error. The case is further stated by the court: Mr. John B. Hawley, for plaintiff in error: The letter of September 21, in reply to the letter of September 18, says: "Yes, we guarantee you for thirty days from September 13, 1869," showing that the original letter of credit of that date, was referred to and was to stand, and that the only effect of the last named letter was simply to permit the issuance of new drafts within the thirty days from September 13, provided previous drafts were paid.

The defendant below authorized the drawing of drafts upon shipments of cattle. The drafts issued were in fact upon shipments of hogs.

The plaintiff in error having never in any way abandoned the original letter of credit, and the defendant in error having failed to comply with its provisions, the plaintiff in error now ST. LOUIS, Sept. 18th, 1869. respectfully insists that in right and justice it is in no way liable thereon.

HOME SAVINGS BANK OF ST. LOUIS.

J. H. Livingston, Esq., Cashier:

DEAR SIR: Mr. Frederick has to-day presented your letter of credit for $10,000 of 13th,

Mr. Fred. W. Jones, for defendant in

Talmadge, was simply and only extending an act of accommodation to appellant, upon ap pellant's request, through Frederick, who must be considered the agent of the appellant to transact the business and receive the accommodation. The mere payment of the money by the appellee on the drafts raised a debt against the appellant.

1 Bell, Com..5th ed,371, cited in Bouvier, Dic.. tit. "Letters of Credit;" Lawrason v. Mason, 3 Cranch, 492.

"Cattle" is defined by Webster as, "beasts or quadrupeds in general, serving for tillage or other labor, and for food for man."

Worcester defines the word as "A collective name for domestic quadrupeds including the bovine tribe; also horses, asses, mules, sheep, goats and swine, but especially applied to bulls, oxen, cows and their young.'

But the word "cattle" has received judicial construction and definition and is held to in clude not only "pigs" but horses, mares, colts, sheep and even "asses." and this, in criminal cases where a strictness of construction in favor of life and liberty invariably prevails. The Statute of 22 and 23 Car. 2, ch. 7, prohibited the maiming or killing any "horses, sheep or other cattle." The Statute of 9 Geo. I., ch. 22, which was held as extending and enlarging the Statute of 22 Car. 2, used the word "cattle" only. Yet in Rex v. Chapple, Russ & Ry., Cr. Cas., 77, upon a conviction for poisoning "pigs" where the point was raised, whether pigs were cattle within the Act, judges held that they were; and in Rex v. Whitney, Mood. Cr. Cas., 3, the point was raised whether asses were tle" within the Act, and the judges (eleven being present) held that they were.

| The plaintiff in error admits the execution of the drafts and the payment of the money, but insists there is no right of action against it, because the drafts were drawn on shipments of "hogs" instead of cattle. It is not pretended that any injury accrued to it on this account; nor that its security was lessened; nor that there was any want of good faith on the part of the St. Louis Bank or Frederick in the transaction; but the point made is, that it only consented to be bound if cattle were shipped, and this not being done, no liability attaches to it.

This defense, technical though it be, is sufficient to defeat the action if the condition of the guaranty was not observed, and this fact renders necessary a construction of the instrument.

Like all other contracts it must receive the construction which is most probable and natural under the circumstances, so as to attain the object which the parties to it had in contemplation in making it. Frederick was engaged in buying and shipping stock in St. Louis during the fall and winter of 1869, and the presumption is, in the absence of any evidence on the point, that he resided in Decatur, where the plaintiff in error had its place of business. At any rate, he was unknown in St. Louis, without either money or credit and, as he could not carry on his business without money, it was necessary that he should be accredited to some responsible banking house in that city. This was done through the letter of credit of 13th September. The Bank to which this letter was addressed, doubtless thought its correspondent trusted in some degree to the pecuniary respon"cat-sibility of Frederick, but it had no right to suppose that the letter of credit was given solely on this account. On the contrary, the letter is based on the idea that shipments of stock would protect the drafts. If Frederick was responsible, still the Decatur Bank did not trust to this alone, but relied on the security which was to accompany the drafts. This it had a right to do, and its conduct was very natural under the circumstances. Indeed, the business in which Frederick was engaged is usually conducted in this manner. The Decatur Bank doubtless believed and acted on the belief that the stock would sell for enough to pay the drafts, and if it did not, the loss would be inconsiderable and such as Frederick could readily meet. It now seeks to escape liability, not that stock sufficient to secure the drafts was not shipped, but that it was a different sort of stock from that named in its letter. It is fair to presume that an investment in hogs yielded as good a return as an investment in cattle, and if the consignee in Chicago had not failed, that no trouble would have arisen. As this consignee, named by it, and with whom the Saint Louis Bank had no concern, did fail, it seeks to throw the loss on the Saint Louis Bank because it interpreted the letter to embrace shipments of hogs as well as neat cattle.

In Paty's case, 2 W. Bl., 721, "horses" were held to be cattle" within the meaning of the Act" (vide S. C., 1 Leach Cr. Cas., 72); and so were "geldings" in Rex v. Mott, 2 East, Pl. Cr., 1074. The words "of cattle" were words of description only, and formed no part of the guaranty, inasmuch as neither in its letter of Sep. 21, 1869 (which is the real guaranty sued upon), nor in its subsequent letter, does the appellant refer to or mention cattle, or any other property for which the drafts were to be made, nor was it important to either party for what the drafts were given.

Mr. Justice Davis delivered the opinion of the court:

The basis of this suit is the letter of credit of 13th September, 1859, addressed by the cashier of the plaintiff in error to the cashier of the defendant in error, in the following terms: "We beg to accredit with you P. E. Frederick, Esq., whose drafts on shipments of cattle to J. T. Talmadge & Co., Chicago, are herewith guaranteed to the amount of $10,000, for thirty days from date." The subsequent correspondence, on any rational interpretation of it, did not have the effect to change the terms of this the original letter, nor was it intended to do so except in two particulars, which are not the subject of controversy.

Two drafts drawn by Frederick on Talmadge & Co., which were paid to him by the defendant in error, were dishonored, and this suit is brought to hold the plaintiff in error liable on its letter of guaranty.

The question then arises: was this interpretation correct?

That stock of some kind formed part of the guaranty is quite plain, but is the word "cattle" in this connection to be confined to neat cattle alone, that is, cattle of the bovine genus? It is often so applied, but it is also a collective name for domestic quadrupeds generally, including not only the bovine tribe, but horses,

bovine genus. These dealings were continued THE ROGERS LOCOMOTIVE AND MAthrough a period of three months by the renewals of the guaranty, and could not have been infrequent. It would seem, therefore, that the parties in Saint Louis dealt with each other on the understanding that the guaranty embraced the different kinds of stock which are used for food, and ususually sent for that purpose to the Chicago market.

1. To justify a decree for the specific performance They had the right to give this construction of a parol contract for the sale of real estate, the to it, and there is nothing in the evidence tend-contract sought to be enforced, and its performance ing to show that the plaintiff in error under- on the part of the vendee, must be clearly proved. 2. The agreed price, a description of the real estate stood it differently, except that the word "cat- agreed to be sold, and payment of such price must tle," as often used, does not include hogs. But be shown. it would be a narrow rule to hold that this word was used in its restricted sense, in the absence of any evidence, other than inferential, on the subject. Especially is this so when the word is susceptible of a different meaning, and important transactions have been based on the idea that it was employed in its enlarged and not in its restricted sense.

This construction of the letter of credit dis. APPEAL from the Circuit Court of the Unit