This is an action for loss of a carload of pears purchased by the plaintiff and delivered on August 12, 1918, to the Great Northern Railroad at Wenatchee, Washington, in apparently good order and condition, under a consignment to the plaintiff at Pittsburg, Pennsylvania. The car arrived at Pittsburg on August 23, 1918, and delivery was tendered by the carrier to the plaintiff. At the request of the plaintiff the carrier reconsigned the car to the plaintiff at Waterbury, Connecticut, with instructions to notify the W. L. Hall Company. The car arrived at *87Waterbury on August 27, 1918, and the W. L. Hall Company was advised by the carrier that the car had arrived. The W. L. Hall Company declined to take delivery on the ground that the pears were ripe. On August 30, 1918, the plaintiff directed the agent of the defendant to divert the car in question to Boston, Massachusetts. The car was diverted and moved forward during the forenoon of August 30, 1918. While en route to said Boston the car was destroyed in a freight wreck at Vernon, Connecticut.
It is agreed that the price paid by the plaintiff for the pears at Wenatchee, $963.85, was the actual value of the pears at that time and place. It is further agreed that, from the time the car was shipped from Wenatchee up to the time that the car was destroyed in said wreck, the pears were constantly ripening; and due to no fault of the carrier, but solely to the fact that the pears were constantly becoming ripe, the actual value of the pears steadily decreased so that at the time the car was destroyed in said wreck the actual market value of the pears was only $500. The defendant, before suit, tendered the plaintiff the sum of $500. The plaintiff declined to accept said amount tendered, claiming it was not sufficient; and the plaintiff has not received from any one compensation for the pears destroyed.
The plaintiff claims it is entitled to receive $963.85, that being the value of the pears at the time and place of shipment, under the following provision of the bill of lading: “The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment under this bill of lading, including freight charges, if paid.” Relying upon the authority of Chicago, Milwaukee & St. Paul Railway v. McCaull-Dinsmore Co. 253 U. S. 97, the defendant claims that the provision hereafter quoted taken from the so called Carmack amendment to § 20 of the interstate commerce act, 34 U. S. Sts. at Large, 595, was void and without effect to support the contention of the plaintiff, because the first Cummins amendment to the interstate commerce act made the above stipulation void. U. S. St. 1915, c. 176. 38 U. S. Sts. at Large, 1197. On the other hand, the plaintiff contends that the regulation was legalized by the second Cummins amendment to the interstate commerce act. U. S. St. 1916, c. 301. 39 U. S. Sts. at Large, 442. From the agreed facts it is inferable that the bill of lading *88originally issued continued in force as a binding contract by the action of the parties, until the car was destroyed at Vernon, Connecticut. Gulf, Colorado & Santa Fe Railway v. Texas Packing Co. 244 U. S. 31, 35. A judge of the Superior Court found for the plaintiff in the amount of $500, and the case is before this court on the exceptions of the plaintiff.
We do not think the second Cummins amendment is applicable to the facts of this case. If we assume with counsel that it is, it becomes necessary to compare and determine the effect of the first and second Cummins amendments upon the “ Carmack Amendment,” so called, to the act to regulate commerce, approved June 29, 1906. The Cummins amendment, U. S. St. 1915, c. 176, provides that the carrier affected by the act "shall issue a receipt or bill of lading . . . and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property . . . and no contract, receipt, rule, regulation, or other limitation of any character whatsoever, shall exempt such common carrier . '. . from the liability hereby imposed; ” and further, that the carrier “ shall be liable . . . for the full actual loss, damage, or injury . . . notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, or in any contract, rule, regulation, or in any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in which it is sought to be made is hereby declared to be unlawful and void.” The Cummins amendment, U. S. St. 1916, in amendment of the U. S. St. 1915, so far as is material to the question at issue reads: “. . . Provided, however, That the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or recovery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply, first, . . .; second, to property . . . received for transportation concerning which the carrier shall have been or shall hereafter be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agree*89ment shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released, and shall not, so far as relates to values, be held to be a violation of section ten of this act to regulate commerce, as amended.”
Under the first Cummins amendment, supra, as construed in Chicago, Milwaukee & St. Paul Railway v. McCaull-Dinsmore Co. supra, the shipper was permitted to recover the full actual loss, notwithstanding the stipulation in the uniform bill of lading that “ the amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment . . . including freight charges, if paid.” It is plain that under this act the stipulated value might measure the actual loss value or be greater or less than the full actual loss. Under the second Cummins amendment, supra, in the condition therein stated, the stipulation as to value is legal but the right of the shipper to recover the full actual loss is limited by the provision that the “ declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared and released.” Evidently the effect of the second amendment is to limit the maximum of recovery to the value stated in the bill of lading and does not affect cases where the loss is less than the value stated in the bill of lading. This falls far short of legalizing the provision of the bill of lading that “the amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment.” “As a general rule, the appropriate compensation for the breach of a contract to deliver goods is their market value in money at the time and place at which they should have been delivered, with interest thereon; and it is admitted that such is the rule in an action against a carrier if the goods are never delivered. Spring v. Haskell, 4 Allen, 112.” Cutting v. Grand Trunk Railway, 13 Allen, 381, 385. New York, Lake Erie & Western Railroad v. Estill, 147 U. S.591, 622. Chicago, Milwaukee & St. Paul Railway v. McCaull-Dinsmore Co. supra. Gulf, Colorado & Santa Fe Railway v. Texas Packing Co. supra.
It follows that the loss of the shipper, subject to the limitation of the act, is to be determined by the value of the goods in the condition in which they should have been delivered by the carrier at their destination. It is agreed that the actual market value *90of the pears at the place of delivery was $500. It results that the exceptions must be overruled.
Exceptions overruled.