I concur in the result. The error committed in the dismissal of the complaint is obvious. The common law liability of the defendant could be restricted only by a contract. If the plaintiff’s version of the circumstances attending the delivery of his baggage and the receipt of the ticket is true, there was no contract; hence the ninety-day limitation alleged to be a part thereof *24had no existence and conld not he invoked as the ground of dismissal. If there was no contract the suit, was timely. It was for the jury and not the judge to say whether there was a. contract.
Judgment reversed and new trial ordered with costs to appellant to abide event.