they arrived at Los Angeles the meat was spoiled, soured, and tainted, and was sold for soap grease for the sum of $86.

The answer admitted the receipt of the meat from Swift & Co., and the making of the contract in writing with said company, which was filed with the petition as an exhibit, but denied that the contract imposed upon defendant the duty of transporting the meat beyond Pueblo, the western terminus of its line, or of forwarding it by way of other lines of railway to its destination, and alleged the performance of its duty under the contract by transporting the goods to Pueblo in good condition and on time, and by delivering them to the Denver & Rio Grande Railroad, a connecting carrier. So much of the contract for the carriage of the goods as is material to the issues is as follows:

"Form 1132. The Missouri Pacific Railway. South Omaha, Neb., Nov. 14, 1890. Received from Swift & Company, the following packages, contents unknown, in apparent good order, marked and numbered as per margin, to be transported from South Omaha to Los Angeles, Calif., and delivered to the consignee, or a connecting common carrier. The packages aforesaid may pass through the custody of several carriers before reaching their destination, and it is understood as the part of the consideration, for which the said packages are received, that the exceptions from liability made by such carriers respectively shall operate in the carriage by them respectively of said packages, as though herein inserted at length; and especially that neither of said carriers, or either or any of them, or this Company shall be liable for leakage of any kinds of liquids,

or for damages to personal property of any kind, occasioned from delays, from any cause, or change of weather, or for loss or damage by fire, or for loss or damage on seas, lakes, canals, or rivers. And it is further especially understood, that for all loss or damage occurring in the transit of said packages, the legal remedy shall be against the particular carrier only in whose custody the said packages may actually be at the time of the happening thereof-it being understood that The Missouri Pacific Railway Company in receiving the said packages to be forwarded as aforesaid, assumes no other responsibility for their safety or safe carriage than may be incurred on its own road. All goods carried by this Company are charged at actual gross weight, excepting such articles as are provided for in our General Tariff. *

"Notice. This contract is accomplished and the liability of the Companies as Common Carriers thereunder, terminates on the arrival of the goods or property at the station or depot of delivery, and the Companies will be liable as Warehousemen only thereafter, and unless removed by the Consignee from the station or depot of delivery within

"[Signed]

J. M. Gallagher, Agt. J." The evidence shows that the shipment was solicited by Daniel King, contracting agent for the Missouri Pacific Railroad Company, and that he furnished the routing. The eviIdence also tends to show that the car in which the meat was shipped arrived at Pueblo in good order and on time, and that the meat was then in good condition; that it was promptly delivered to the Denver & Rio Grande Railroad, by which it was hauled to Trinidad and placed on a connecting line between the Denver & Rio Grande and the Atchison, Topeka & Santa Fé Railroad Companies on November 19th, and by the latter road taken into its yards, a transfer sheet delivered to its agent without objection, and $200 tendered to pay the freight, which tender was refused on the claim that the road was entitled to the same rate as from Missouri River points. The evidence further tends to show that there was no traffic arrangement between the Missouri Pacific Railroad Company and the Atchison, Topeka & Santa Fé Railroad Company to receive transcontinental freight at Trinidad for less than the local rate ($1.30 per 100 pounds), but there was a traffic arrangement between the two roads that transcontinental freight received by the Missouri Pacific should be delivered to the Atchison, Topeka & Santa Fé at Kansas City; the through rate from Kansas City to Los Angeles being $1.75 per 100 pounds. On learning that the Atchison, Topeka & Santa Fé Railroad would not haul the goods from Trinidad for $200, the Denver & Rio Grande Railroad Company hauled the car back to Pueblo, and from there rerouted it over other connecting lines to Los Angeles, where it arrived on December 15, 1890. The car was immediately opened on its arrival, and the meat found to be sour and tainted, and, being unfit for any other purpose, was sold for soap grease, for the sum of $85. The car was not reiced at Pueblo, but was found well iced when it arrived at Los Angeles. When or by what road it was reiced does not appear from the evidence.

S. W. 26; Kechum v. Express Co., 52 Mo. 390; Snider v. Express Co., 63 Mo. 376; Railroad v. Myrick, 107 U. S. 102, 1 Sup. Ct. 425, 27 L. Ed. 325; Mulligan v. Railway, 36 Iowa, 186, 14 Am. Rep. 514; Detroit & Milwaukee Railroad Company v. Bank, 20 Wis. 122; Pendergast v. Express Co., 101 Mass. 120; Berg v. Railroad, 30 Kan. 561, 2 Pac. 639; St. L. & I. Mt. R. Co. v. Larned, 103 Ill. 293; Keller v. Railroad (Pa.) 46 Atl. 261; Harris v. Howe, Receiver, 74 Tex. 534, 12 S. W. 224, 3 L. R. A. 777, 15 Am. St. Rep. 862.

The contract of shipment expressly provides: "This contract is accomplished and the liability of the Companies as Common Carriers thereunder, terminates on the arrival of the goods or property at the station or depot of delivery." And if there was nothing in the waybill itself and no evidence to qualify the exemption clause, we would, without hesitation, hold that the defendant's liability ceased when, without unreasonable delay, it delivered the car to the Denver & Rio Grande Railroad Company. But the evidence shows that the defendant selected the particular lines of railroad over which the car should be transported to its destination, and had these lines of road specially designated on the waybill, and collected and receipted for a through freight charge. The evidence also tends to show that the defendant had a traffic arrangement with the Atchison, Topeka & Santa Fé Railroad Company for the transportation of transcontinental freight, whereby a through rate was agreed upon, which was to be shared in common by them. We think the reasonable inference to be drawn from this evidence is that the defendant made the Denver & Rio Grande and the Atchison, Topeka & Santa Fé Railroad Companies its agents for the transportation of the car of meat to Los Angeles, and that the exemption clause was inserted in the waybill for the purpose of fixing liability as between the several lines over which the car would have to be hauled to reach its destination, and does not have the effect to restrict defendant's liability to the shipper for losses which might occur on its own line. We so construed the contract on the former appeal (72 Mo. App. 296), and think this construction is supported by the case of Harp v. Grand Era, 1 Woods, 184, Fed. Cas. No. 6,084, where it was held: "Where several carriers unite to complete a line of transportation and receive goods for one freight, and give a through bill of lading, each carrier is the agent of all the others to accomplish the carriage and delivery of the goods, and is liable for any damage to them, on whatever part of the line the damage is received." A similar ruling was made in Baltimore & Ohio R. Co. v. Wilkens, 44 Md. 11, 22 Am. Rep. 26, in Barter v. Wheeler, 49 N. H. 25, 6 Am. Rep. 434, and in Wyman v. Railroad, 4 Mo. App., loc. cit. 39, where it is said: "It may be regarded as equally well settled, upon au

thority, that if several common carriers, having each its own line, associate and form what to the shipper is a continuous line, and contract to carry goods through for an agreed price, which the shipper or consignee pays in one sum, and which the carriers divide among them, then, as to third parties with whom they contract, they are liable jointly for a loss taking place on any part of the whole line. Barter v. Wheeler, 49 N. H. 25 [6 Am. Rep. 4341; Bradford v. Railroad, 7 Rich. Law, 201 [62 Am. Dec. 411]; Cincinnati, etc., R. Co. v. Spratt, 2 Duv. 4; Nashua Lock Co. v. Railroad Co., 48 N. H. 339 [2 Am. Rep. 242]; Quimby v. Vanderbilt, 17 N. Y. 306 [72 Am. Dec. 469]; Chouteaux v. Leech, 18 Pa. 224 [57 Am. Dec. 602]; Baltimore, etc., Steamboat Co. v. Brown, 54 Pa. 77; Hart v. Railroad, 8 N. Y. 37 [59 Am. Dec. 447]. Also to the same effect is the case of Cummins v. Railway, 9 Am. & Eng. R. Cas. 36, where it was ruled: "Railroad companies have the power to contract to carry goods beyond their own line, and where they enter into such contract they will be liable as a common carrier throughout the whole transit. Three railroad companies, whose lines formed a continuous road between X. and Y., held themselves out to the public as having formed a combination for the transportation of goods on the entire route. A. at X. shipped goods with one of the companies addressed to B. at Y., and took a receipt whereby the company undertook to forward as per directions. Said receipt contained numerous provisions limiting liability, and provided that all the carriers transporting the property as a part of the through line should be entitled to all the exceptions and conditions therein mentioned. Held, that said carrier had contracted to carry the goods through to Y., and was liable for a loss occurring in consequence of delay in said transit, although the same occurred beyond its own line." It is true, there is no direct evidence to show that the Denver & Rio Grande Railroad Company was a party to the traffic arrangement shown to exist between the defendant and the Atchison, Topeka & Santa Fé Railroad Company; but we think, from its selection as one of the connecting carriers, and from the evidence and circumstances shown in the case, it may reasonably be inferred that it was either a party to the arrangement, or was selected by defendant company as its agent to forward the car to the Atchison, Topeka & Santa Fé Railroad Company. When such connection or agency is shown, Hutchinson says: "It is universally agreed that, if any connection of that character exists by which they become participants in common in the profits of the business, any one or all of them may be held liable at the option of the loser." Hutchinson on Carriers, § 158.

The routing of the car was diverted with out the consent or knowledge of the shipper, and the evidence shows that this change of

route caused the delay and the damage to the goods. The agreement was specific that the car should be transported over the roads designated on the bill of lading. This agreement was not satisfied by a change in the routing, and was a clear breach of the contract. Hutchinson on Carriers, § 310; Goodrich v. Thompson, 44 N. Y. 324. And the defendant is liable notwithstanding the exemption clause in the bill of lading. G., H. & H. Ry. Co. v. Allison, 59 Tex. 193; Texas & P. Ry. Co. v. Boggs (Tex. Civ. App.) 40 S. W. 20; Stewart v. Transportation Co., 47 Iowa, 229, 29 Am. Rep. 476; Illinois C. R. Co. v. Southern Seating & Cabinet Co., 104 Tenn. 568, 58 S. W. 303, 50 L. R. A. 729, 78 Am. St. Rep. 933.

We think the court properly refused defendant's declarations of law, and that the evidence supports the judgment. The judgment is therefore affirmed. All concur.

Separate Opinion.

GOODE, J. That the appellant was liable as a common carrier for the loss of the car load of meat in controversy at any point of its transit from Omaha to Los Angeles was adjudged on the former appeal of this case, and the decision of the present appeal might be rested on that fact alone. 72 Mo. App. 296. But I think the very words of the bill of lading show that the appellant contracted to transport the meat from South Omaha, Neb., to Los Angeles, Cal., and deliver it at the latter point to the consignee or a connecting common carrier. The meat was ruined in transit by somebody's negligence. It was too long on the road, and was not iced at proper times. Moreover, our conviction is strong that appellant is to blame for the delay, as it must have known that the dispute between it and the Santa Fé Railway Company was likely to cause the latter to refuse to receive the car on the division of the freight money accorded by appellant. This dispute had arisen prior to the shipment in controversy, and, when appellant routed the car to be delivered to the Santa Fé at Trinidad, it invited loss. It had no arrangement with the Santa Fé Company to receive freight at that point, and knew the latter company insisted on not receiving it there. If the appellant's contract was to carry it over the whole route, it cannot be excused from liability for the loss of the meat by negligence, even though the loss occurred while it was in the custody of some intermediate carrier. The appellant remained responsible throughout. If the appellant had stood on its common-law right, and contracted to carry to the end of its line only, or had not contracted to carry further, the clause in the bill of lading exonerating it from liability for losses occurring on other than its own line would be valid. The case is really one of interpretation of the con

tract. What did the appellant agree to do? The first sentence of the bill of lading is as follows: "Received from Swift & Company, the following packages, contents unknown, in apparent good order, marked and numbered as per margin, to be transported from South Omaha to Los Angeles, Calif., and delivered to the consignee, or a connecting common carrier." That language made a contract for through carriage by the appellant, which contract only could be completed by delivery to the consignee, or a connecting carrier at the destination named-not to a connecting carrier anywhere on the route. but only at Los Angeles. There is a subsequent clause in the bill of lading which implies that the appellant received the goods to be forwarded over lines of connecting carriers, and recites that it assumed no responsibility for the safety of the meat, except on its own line. In view of the facts in proof, the use of the words "to be forwarded" did not make the contract one on the part of the appellant to carry only over its own line, and thereafter be liable as forwarder, and not as carrier, for the balance of the route. Hutchinson, Carriers (2d Ed.) § 157, and cases cited in note. The appellant collected the freight for the whole journey, and took part in, if it did not control, the routing of the car. In my opinion, the only fair construction of this contract is that the appellant was to transport the goods from Omaha to Los Angeles, and that other railroad companies which assisted in carrying out the contract did so as agents of the appellant. Nanson v. Jacob, 12 Mo. App. 125; Germain Fruit Co. v. R. R. (Cal.) 65 Pac. 948. So far as the evidence shows, this appellant need not have contracted to carry beyond its own line. The contract was a Nebraska one, and the Nebraska statute which would make the contract a through one in any event was not put in evidence But in point of fact, and by express words, the appellant's agreement was to carry over the entire route. Therefore it cannot be excused from liability for the negligent acts of intermediate carriers who must be regarded as its agents. In the Missouri cases cited and relied on by appellant it did not appear that the bill of lading bound the initial carrier to transport the goods to destination. In Nines v. R. R., 107 Mo. 475, 18 S. W. 26, the petition alleged the defendant agreed to carry the property to destination. and the answer denied that allegation, and averred the defendant agreed to carry no further than St. Louis, its terminus. In Dimmitt v. R. R., 103 Mo. 433, 15 S. W. 761, and Miller, etc., Co. v. R. R., 138 Mo. 658, 40 S. W. 894, the bills of lading showed on their faces that the defendant companies agreed to carry, not to the destinations, but to the ends of their respective lines.

I think the judgment should be affirmed.

1. Defendant's contract for the sale of a farm provided that his vendees might "cut and remove portions of the timber standing on said premises," but that the same should remain the property of defendant, and the proceeds be paid to him, the amount thereof to be credited to the vendees on settlement for the purchase price. A contract of cancellation thereafter made between defendant and his vendees recited sales of timber by the vendees to various parties, and provided that the latter might remove the timber purchased, provided they did so within a certain time. Held, that defendant thereby adopted these contracts and that they thus became as effective in law as if he had originally made them himself.

2. In an action against defendant by plaintiff, one of the purchasers from the vendees, for conversion of timber which had been removed from where it stood after being cut, and deposited, with the permission of both defendants and his vendees, in a gulch in another part of the farm, and which defendant claimed was forfeited because not removed from the farm within the time specified, there was evidence that one of defendant's vendees consented that the timber might remain in the gulch until plaintiff was ready to remove it, and that defendant acquiesced in this consent. It was not shown that the timber was in defendant's way in any manner, or that it occupied ground which he desired to utilize for farming purposes. Held, that under the circumstances defendant's act in refusing to permit plaintiff to take possession and remove the timber from the gulch was a conversion.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trover and Conversion, §§ 51-57.]

3. Part of the timber was not cut from the two acres included in the contract from defendant's vendees to plaintiff, and there was no evidence that defendant ratified the act of his vendees in permitting plaintiff to cut timber outside the two-acre limit, or that defendant knew that any part of the timber was so cut. Held, that by permitting plaintiff to deposit the timber in the gulch defendant did not recognize plaintiff's right to any portion cut outside said limit.

4. The language of the original contract permitting the vendees to cut and remove "portions of the timber," etc., was too indefinite to show what portion they had a right to cut, and hence plaintiff, who had no greater right or title, failed to establish title to the timber outside the two-acre limit.

5. The title to the land being in defendant, and the timber being a part thereof, the burden of proving that he had parted with the title, and that plaintiff himself was the owner, was on the latter.

6. An instruction predicated on the theory that, if defendant knew that plaintiff was appropriating without objections the timber in excess of that coming off the two acres, the verdict should be for plaintiff, was error.

7. A party is not precluded from asserting his right to property, as between himself and another, by the mere fact that he knew the other was appropriating it, and made no objection at the time. as the essential element of consideration would be lacking in the transaction; though as to strangers afterwards ac

quiring the property in good faith and for a consideration the law would be otherwise.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, § 60.]

8. A clause in a contract for the sale of land permitting the vendees to cut and remove "portions of the timber now standing on said premises" was too uncertain for enforcement in a court of law, and could be binding on the parties only in so far as they mutually acted under it.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Logs and Logging, § 9.]

9. The question of credibility of witnesses is one for the triers of the facts.

10. Courts are slow to enforce forfeitures, and will not do so if there is any reasonable excuse for doing otherwise.

Appeal from Circuit Court, Atchison County; Wm. C. Ellison, Judge.

Action by John W. Watson against Richard Gross. Judgment for plaintiff, and defendant appeals. Reversed.

L. J. Miles and J. P. Lewis, for appellant. Hunt & Bailey, for respondent.

BROADDUS, P. J. This suit was commenced before a justice of the peace for the conversion of 3 cords of wood and 200 posts. On the trial in the circuit court plaintiff recovered judgment, and defendant appealed..

In November, 1902, defendant entered into a contract with Daisy and Harlan Douglas to sell them a certain farm situated in Atchison county. At the time of sale no money was paid, but it was agreed that they would settle for the price of the farm in February, 1903, by payment of money and a mortgage on the land and other property. It was agreed between defendant and the said Douglases that the latter had the privilege "to cut and remove portions of the timber standing on said premises," but that the same should remain the property of defendant, and the proceeds be paid to him; but on final settlement for the price of the land the same was to be credited to the Douglases. Between the two dates mentioned, and while defendant was in Oklahoma, the purchasers inade some 10 or 12 written contracts with different third parties for the sale of specified parts of the timber standing on the land. When defendant returned from Oklahoma he found these numerous third parties cutting said timber. In order to protect himself, he entered into a new agreement with the Douglases, by which the contract for the sale of the land was canceled, and possession was returned to him. The contract of cancellation recited the fact that the sales of timber had been made by said Douglas to certain parties, mentioning their names, and the number of acres specifically each contract contained. This latter contract also provided that the purchasers were to be allowed to remove the timber purchased, but that such removal should be made by the 1st day of March next thereafter. One George Fox and plaintiff held one of these contracts for the purchase of timber, but, as Fox sold.