Disbrow & Co. brought suit against the Cincinnati, New Orleans and Texas Pacific Railway Company for damage done to live stock, shipped .over that road upon what is known as a through contract, from Cincinnati, Ohio, to Columbus, Georgia, while on the route between those points. The plaintiffs based their action on the bill of lading, which they contended -embodied the only contract of affreightment entered into and agreed upon between them and the company. The defendant company,on the other hand, insisted that, in consideration of a largely reduced rate of freight, being one-third of the freight usually charged, the plaintiffs agreed to take charge of their stock on the route and to attend to loading and unloading and watering them, and to relieve the company from all responsibility for the safe transportation of the same, except such damage as resulted from its own negligence. This special contract was made out and signed in duplicate for the plaintiffs by the person they employed to load and ship the horses, and for the company by its duly authorized agent. There is some dispute as to the authority of the person loading and shipping the stock to make this contract for the plaintiffs, one of whom was present, and who alleges that he made a different arrangement from that *262entered into by the person who had charge of the shipping of the horses, and which contained no such terms and conditions as those embodied in the special stock contract; but it is evident that one of these duplicates was delivered to the member of the plaintiffs’ firm who was present and conducted, as he alleges, the negotiations for the transportation of the stock; with this duplicate there was an order for a ticket, which entitled Mr. Bussey, the member of the plaintiffs’ firm mentioned, to a free ride over defendant’s road and other connecting roads from the place of his departure to his destination; of this he made use; he did not accompany the stock himself, nor did he furnish a hand to do so and care for 1 hem. The defendant contended that the loss of the horses was attributable solely to the plaintiffs’ want of care, which, by the terms of the contract, they took upon themselves, and not to its fault or negligence. The material issue between the parties was, whether their contract was that arising upon the bill of lading, or whether their respective rights and liabilities depended upon the alleged special contract. If it was the former^ there may, probably, be less doubt as to the correctness of the finding, but if their rights and liabilities are to be measured by the latter, then the verdict is wrong. The complaint, as set forth in the 11th and 12th grounds of the motion for a new trial, is, that this issue was withheld from the jury, and that they were not allowed to pass on it, by reason of the rejection of a copy of the written contract., it being shown that the duplicate in possession of the defendant had been destroyed by a flood, and that the plaintiffs failed to produce that in their possession, or in any manner to account for it; indeed, it is apparent that they attached no importance to it, and that it was laid aside, and no care whatever was taken to preserve it. While accepting defendant’s ticket to ride on the cars, which went along with the duplicate delivered to Mr. Bussey, the defendant was not notified that they repudiated the special contract containing the stipulations and conditions mentioned. Under *263thb circumstances, we are of opinion that the defendant had a right to this evidence, as well as the right to have submitted to the jury, whether the shipment was made under the contract set up by the plaintiffs or that relied on by the defendant; and if they had found in favor of the latter, then it was their duty to inquire further, whether the injury complained of resulted from plaintiffs’ failure to comply with the stipulations contained in the written contract or from the negligence of the defendant. I.f the finding had been with the defendant on that point, then it would not have been liable to this action, as we decided at the September term, 1884, of this court, in the case of The Central Railroad Co. vs. Bryantfor the use, etc.* As there must be a new trial on these grounds, it is unnecessary to consider other questions which depend upon the solution of this, and which, in a certain event, may never arise.
Judgment reversed.