We regard it as settled that in a suit by a consignee against the carrier of goods for loss of or injury to the goods in transit, the defendant ordinarily may show that the consignor had made with it a special contract of shipment, and that the consignee receives the shipment subject to the terms of such special contract and to the risks thereby assumed by the consignor. Squire v. New York Central Railroad, 98 Mass. 239, 248. Finn v. Western Railroad, 112 Mass. 524, 534. Hill v. Boston, Hoosac Tunnel & Western Railroad, 144 Mass. 284. Cox *566v. Central Vermont Railroad, 170 Mass. 129, 136. See to the same effect York Co. v. Central Railroad, 3 Wall. 107, 113; Donovan v. Standard Oil Co. 155 N. Y. 112; Shelton v. Merchants’ Despatch Transportation Co. 59 N. Y. 258; Nelson v. Hudson River Railroad, 48 N. Y. 498 ; Robinson Bros. v. Merchants’ Despatch Transportation Co. 45 Iowa, 470; Christenson v. American Express Co. 15 Minn. 270; Mouton v. Louisville & Nashville Railroad, 128 Ala. 537, 544. The consignee may maintain an action against the carrier for a breach of the duty imposed upon the latter by law. If this duty has been varied by a contract between the carrier and the consignor, being the contract under which the goods were received and transported by the carrier, the consignee may still sue the carrier, but his rights are subject to the terms of the special contract. And a consignee who has title to the property carried may sue the carrier in contract upon the carrier’s implied agreement to deliver the goods to the consignee. But this implied agreement is subject also to the terms of any express contract made by the carrier with the consignor. These doctrines are fully sustained by the cases already referred to.
But it is also settled that where a definite contract of shipment has been made between the consignee or owner and the carrier, this binds both parties as between themselves, and cannot be varied by any subsequent arrangement or agreement made with the carrier by the consignor or any other person acting in the shipment, unless of course such person has authority from the consignee to alter the original contract. • This was held in Jennings v. Grand Trunk Railway, 127 N. Y. 438, 449, Waldron v. Fargo, 170 N. Y. 130, 154, and Ohio & Mississippi Railway v. Hamlin, 42 Ill. App. 441. It is the underlying reason for the decisions in Perry v. Thompson, 98 Mass. 249, 253, Russell v. Erie Railroad, 41 Vroom, 808, and Hayes v. Campbell, 63 Cal. 143. It is the rule stated in 1 Hutchinson on Carriers, (3d ed.) § 459, with citation of cases. To hold otherwise would be to say that one party to a contract might relieve himself from its obligations without the consent or knowledge of the other by merely making an inconsistent agreement with a third party.
But in the case at bar one of the matters in dispute was whether the goods in question had been transported under an *567original agreement with the plaintiff, or whether it appeared that there had been nothing more than some preliminary negotiations with it in Springfield or with its representative Murphy in Western New York, and that the actual shipping agreement had been made between the defendant and Bradley, one of the shippers of the goods. As in Waldron v. Fargo, 170 N. Y. 130, already referred to, this question should have been submitted to the jury. The presiding judge apparently assumed that it was not in dispute that the agreement for the shipment had been made between the plaintiff and the defendant, and carefully and accurately instructed the jury as to the terms of this agreement and the rights and duties of the parties growing out of it. There is in the bill of exceptions some justification for this assumption. But we think that it does sufficiently appear that the question with whom the defendant’s agreement was made was in issue, as well as the question as to the terms of such agreement. The defendant’s counsel, in saving his exceptions to the rulings made in the charge to the jury, expressly stated his contention that Bradley was the consignor of the goods, that he made the contract with the defendant, and that the special contract made by him as the consignor was binding upon the plaintiff as the consignee.
Under the rulings made, the jury may have been obliged to refrain from considering what was said and done by Bradley, on the ground that he had no authority to act for the plaintiff. If so, they might well have found that the talk between Perkins and Brown did not itself amount to a concluded contract, that the only contract of the defendant was made with Murphy as the plaintiff’s representative at Rochester or at Hyde’s Crossing, and that the terms of this contract were as claimed by the plaintiff. If they had been allowed to consider the testimony as to Bradley, it may be that they would have found that the only real contract of shipment was made between the defendant and him acting as consignor of the goods, and that the plaintiff was bound by this agreement. Accordingly, there must be a new trial.
As the question of admitting evidence of the price paid for these goods at Hyde’s Crossing may arise again, it is proper to say that we see no error in excluding that evidence. The plain*568tiff’s damages depended upon the market value of the peaches in Springfield and Boston respectively. Evidence of the price paid for them in the orchard at Hyde’s Crossing might have a bearing upon their market value there in their condition at that time. But the judge had a right to exclude it as bearing too remotely upon their market value in baskets at Boston or Springfield one or two weeks later. Both the condition and the location of the property had become greatly changed, and there was nothing to show that the changed circumstances had produced no change in the market value, as in Croak v. Owens, 121 Mass. 28. It was not simply the short lapse of time, but the considerable change in situation and condition that must be considered. There is nothing inconsistent with this in Eaton v. Mellus, 7 Gray, 566, McAvoy v. Wright, 137 Mass. 207, or White Sewing Maehine Co. v. Phenix Nerve Beverage Co. 188 Mass. 407, relied on by the defendant.
Exceptions sustained.