more than the limited damages agreed upon: 244 U. S. 995.

Mr. A. H. Ninestein, for respondent, cites: Shipper must consent to limited liability: 86 S. E. 22, 23. Question of agency for jury: 101 S. E. 860. Burden on carrier to show assent of shipper to limited liability: 64 S. E. 385; 53 S. E. 480. Difference in the facts of 96 S. E. 712.

January 31, 1921.

The opinion of the Court was delivered by MR. CHIEF JUSTICE GARY.

This is an action for the alleged failure on the part of the defendant, to deliver a certain package of clothing, consigned by the plaintiff from Blackville, S. C., to the Knickerbocker Clothing Company of New York City.

The defendant, by way of defense, relied upon the receipt for the package, as limiting the amount of recovery to $50; the receipt containing this provision:

"In consideration of the rate charged for carrying said property, which is dependent upon the value thereof, and is based upon an agreed valuation of not exceeding fifty dollars, for any shipment of 100 pounds or less and not exceeding fifty cents per pound, actual weight, for any shipment in excess of 100 pounds, unless a greater value is declared at the time of shipment, the shipper agrees that the company shall not be liable in any event, for more than fifty dollars for any shipment of 100 pounds or less, or for more than fifty cents per pound, actual weight, for any shipment weighing more than 100 pounds, unless a greater value is stated herein. Unless a greater value is declared and stated herein, the shipper agrees that the value of the shipment is as last above set out, and that the liability of the company shall in no event exceed such value."

23-S C. 115.

The jury rendered a verdict in favor of the plaintiff for $329, and the defendant appealed upon exceptions, which will be reported. The appellant's attorneys state that the exceptions, when taken together, involve a single proposition, to wit: Did the contract between the parties limit the amount to be recovered, in case of loss, to $50?

In

This Court has just rendered a decision in another case between the same parties, in which it construed the provisions of a similar receipt, and held that the limitation of a recovery to $50, in a case of loss, was binding on the shipper. But that is not the question in the present case. this case the main question is whether the plaintiff entered into the contract embodied in the receipt. His Honor, the presiding Judge, submitted this question to the jury; and the appellant's attorneys contend that in so doing he committed The plaintiff thus testified:

error.

"I am a merchant at Blackville, and in September, 1918, I shipped a package of merchandise to the Knickerbocker Clothing Company. The package was consigned to me at Blackville, S. C., and it was not what I wanted; so I wrapped it up with the same package it came in, and sent it back to the express office, by the driver of the express wagon. *** $409 was the value marked on the package. I showed this to the boy on the wagon. I did not get a receipt right away, but got it a few days or a few weeks after that. I learned that the package was not delivered, and went to the express company and got a receipt. I asked the agent about the value, and he said: 'I did not know how much it was.' That this receipt was obtained several days afterwards, and I did not sign the receipt. I asked him to put the value on, when he turned the receipt over to me, and he would not do it."

A witness for the defendant testified that the negro who

October Term, 1920.

drove the express wagon around Blackville was an employee of the agent, and not of the express company. The defendant also introduced other testimony contradictory of that in behalf of the plaintiff, which made an issue for the jury.

The case of Banks v. Express Co., 73 S. C. 211, 53 S. E. 166, shows that the testimony introduced by the plaintiff and the defendant made an issuable fact for the jury. It is unnecessary to cite authorities to show that the other facts were properly submitted to the jury.

Affirmed.

MR. JUSTICE GAGE did not participate on account of sick

ness.

10559

POLIAKOFF v. AMERICAN RAILWAY EXPRESS COMPANY.

(105 S. E. 744.)

CARRIERS-LIMITATION OF LIABILITY TO AGREED VALUE ON WHICH RATE BASED EFFECTED BY RECEIPT FOR INTERSTATE EXPRESS CARRIAGE When VALUE NOT DECLARED.-Receipt issued by defendant express company for shipment by the consignor to plaintiff reading the company would not pay over $50 in case of loss unless a greater value was declared and the charges for such value paid held effectual to limit the express company's liability under the rule that such a limitation to an agreed value on which the rate is based is effected by a contract for interstate express carriage, though the shipper makes no declaration of value where the contract shows it was intended to fix a primary value to control the rate.

Before BOWMAN, J., Barnwell, April, 1920. Reversed.

Action by S. Poliakoff against American Railway Express Company. From judgment for plaintiff, the defendant appeals.

Messrs. Harley & Blatt, for appellant, cite: Presumed that carrier is conducting its business lawfully: 241 U. S. 319; 342 U. S. 148; 244 U. S. 58. And that tariff is filed with I. C. C., and shipper is bound by its limitations: 233 U. S. 97. And that shipper knew the lawful rate: 237 U. S. 94; 226 U. S. 491. If no value is declared, tariff rate applies: 232 U. S. 508; 227 U. S. 665. Bill of lading and tariffs filed, fixing the rate and limiting the liability, is conclusive: 227 U. S. 639; 242 U. S. 148; 244 U. S. 58; 96 S. E. 712. No defense that contract was not read by shipper: 242 U. S. 148.

Mr. A. H. Ninestein, for respondent, cites: Shipper must consent to limited liability: 86 S. E. 22, 23. Burden on carrier to show assent by shipper: 64 S. E. 385; 53 S. E. 480.

January 31, 1921.

The opinion of the Court was delivered by MR. CHIEF JUSTICE GARY.

The complaint herein alleges that a package of merchandise was shipped by the Baltimore Bargain House of Baltimore, Md., to the plaintiff at Blackville, S. C., in July, 1915; that upon the arrival of said merchandise there was a shortage of $262.88.

The answer of the defendant interposes the defense that all the plaintiff can recover, if anything, is $50 by reason of the agreement between the plaintiff and the defendant that the liability in case of loss was to be $50, as set out in the original express receipt.

The plaintiff recovered a judgment against the defendant for $262.88, and the defendant appealed.

*

The following receipt was introduced in evidence:

"The company will not pay over $50.00 in case of loss ** unless a greater value is declared, and the charges for such greater value paid.

"Baltimore, Md., 7-19-18. Received from Baltimore B. Hse., subject to the classification and tariffs in effect, on the date hereof, 1 Pa. value herein declared by shipper to be dollars. Consigned to S. Poliakoff at Blackville, S. C., which the company agrees to carry upon the terms and conditions printed on the back hereof, to which the shipper agrees; and as evidence thereof, accepts and signs this receipt. Goldstone. For the Company. Balto. B. H., Shipper.

"Terms and Conditions: (1) The provisions of this receipt shall inure to the benefit of and be binding upon the consignor, the consignee, and all carriers handling this shipment, and shall apply to any reconsignment, or return thereof.

"(2) In consideration of the rate charged for carrying said property, which is dependent upon the value thereof and is based upon an agreed valuation of not exceeding fifty dollars for any shipment of 100 pounds or less, and not exceeding fifty cents per pound, actual weight, for any shipment in excess of 100 pounds, unless a greater value is declared at the time of shipment, the shipper agrees that the company shall not be liable in any event for more than fifty dollars. for any shipment of 100 pounds or less, or for more than fifty cents per pound, actual weight, for any shipment weighing more than 100 pounds, unless a greater value is stated herein. Unless a greater value is declared and stated herein, the shipper agrees that the value of the shipment is as last