concurs.
I concur in the judgment of reversal in this case. I think the charge of the Court was error. In my judgment, there was no evidence of any contract of the East Tennessee and Georgia Railroad to carry this cotton to New York, and that it was error to charge the jury that they might consider from the letter and from Montgomery’s acts, whether there was an undertaking so todo. The charge also informed the jury that though the letter was not, of itself, evidence of such a contract, it was evidence that the road was then making such contracts and doing such business. In the first place, I am inclined to the opinion that, under our law, this letter was not even an offer to Bayard, by this road, to carry his cotton to New York. Fairly construed, what does this letter amount to ? Simply this, that an arrangement had been made between the different connecting lines to carry cotton through from Dalton to New York, without detention, for $9 00 per bag. By the law of England, and by the decisions of the Courts of most of the American States, it is true that a receipt of freight, destined to a distant point, binds the receiptor, who is a common-carrier, to its destination, and especially is this true, if the freight be agreed to be paid in advance or at the end of the line.
But our Code, section 2058, provides that11 if there be several connecting railroads, and goods be intended to be transported over more than one road, such road shall only be liable to its own terminus and until delivery to the next connecting road.” At our last term, this Court decided in the case of The Western and Atlantic Railroad vs. McDonald & Strong, that the mere receipt of goods designed to a distant point, and stated in the receipt as intended to be transported over several roads, even on a through rate, was not, under this section of the Code, such a contract as bound the receipting road for the whole distance. We then held that this section of *286the Code contemplated just such a case, and that the putting of the intention into writing did not alter the law. If goods are intended to pass over different roads, and be delivered by one road to the other, it must be that the freight over the whole line is to be paid at one end of the line; since, if this were not done, the goods must stop. I do not think there is anything in this letter, even as to Bayard, to make this ease different from the case I have referred to. It is, at last» nothing but a statement in writing of the very case put by the Code, to-wit: there are several connecting roads, the goods are to be transported over more than one road, and to be delivered direct from one road to the next without any intermediate consignee or agent to pay the freight and tranship the goods. Nor does the use of the word “ our” in the letter make the case different. Very clearly, the writer means by that word our — not his road — but all the roads.
But admitting that, as to Bayard, this letter, if he acted under it, was a special contract, is it a special contract as to Montgomery, if he acted upon it ?
Now, I do not say a special contract must always be by words on both sides. One may say I will do so and so, if you will do so and so. If the person addressed acts, and lets the other know he has acted, this is the same as if he had agreed in words. What is the case here ? Montgomery sees the letter; it was not addressed to him; he acts upon it and starts his cotton from Rome, destined to New York. He gives no notice that he has acted. He never deals with this road at all. The cotton comes to this road under a'list or freight bill, from Kingston to New York. When this cotton went into the hands of this road, it went there as cotton delivered to the Western and Atlantic Railroad, at Kingston, to be sent from there to Sew York, on a through freight list from Kingston to New York. The only evidence there is that the defendant ever had this cotton in possession at all, is from its own books which, by the very same entries, show that the cotton came to this road from the Western and At*287lantic road, on a through freight list, not from Dalton to New York, but from Kingston to New York. How was this road to know that its through passage to New York was to begin at Dalton ? It came to hand attended, as the books show, by a through freight list from Kingston to New York. The East Tennessee and Georgia Railroad was the second road on the line, not the first, as shown by the freight list accompanying the cotton. How were they to know, without any notice, that Montgomery intended its through passage to start at Dalton ? The evidence shows that, in fact, it started as through freight from Kingston, and not from Dalton. As this road appeal’s to have done its full duty, and as it, so far as its officers knew, was the second road on the line, and, as they had no notice that Montgomery was looking to them as the first, in my judgment they are only liable over their own line. This was a Georgia contract, and is to be regulated by Georgia law — our Code — and the road is liable who lost the cotton. This is easily ascertained. Every road keeps accurate books, and is able to show, in every case, if they have delivered goods to the next road.