There can be no doubt whatever that the original action was ex contractu. There is not the semblance of an allegation of a breach by the defendant of a public duty, ás a common carrier. The complaint shows that the side track was put in for the exclusive use and benefit of the plaintiff, in pursuance of an express agreement to that effect; that the freight rate, the increase of which is complained of, was created and maintained by, and in pursuance of, an express agreement of the parties. Other than this agreement, there is no allegation whatever, having the remotest tendency to show what was or is a reasonable freight rate. So far as shown, the increased rate demanded, was just and reasonable, if it violated no binding contract for a lower rate. The sole complaint is, that the removal of the side track and the increase of the rate, violated the agreement *522into which the parties had entered, with the resultant damages to the plaintiff specified. The duty of the defendant, as a common carrier, stated generally, was to receive freight properly tendered for carriage, and safely carry and deliver the same, according to proper directions of the shipper, upon the payment of reasonable toll. We read the original complaint, in vain, to find a charge of the breach of this duty. Nor is there alleged any special duty to plaintiff, growing out of a contract, and not directly within its stipulations. Why was it'the duty of the defendant to erect and maintain the side track? Because, it had expressly agreed with the plaintiff to do so for his exclusive use and benefit. Is there a conceivable duty to plaintiff growing out of that part of the agreement, which is not directly' involved in ■ the' stipulation itself? Why was it the defendant’s duty to carry plaintiff’s sand at $8 per car? Because it had expressly agreed to do so ; and there can be no duty growing out of this part of the agreement, in reference to the amount of freight charged, that is not directly involved in the stipulation itself. The only defaults or wrongs charged against the defendant, are its refusal to maintain the side track to the sand pit, and the imposition of $12 per car freight charge. It can not be contended, if the contract had been of such character as to be binding, that an action would not lie directly upon these stipulations, and that the damages claimed in the complaint- (or such thereof as are recoverable at all) were the proximate result of the breach of the stipulations recoverable in such action. See White v. Levy, 91 Ala. 175.
It is not, and cannot be, disputed that each of the counts subsequently introduced by amendments were in case, and the court committed no error in disallowing and sustaining demurrers to them.
The contract set up in the original complaint is void for uncertainty and not legally enforceable. It was determinable at the will of either party. The demurrer to it was properly sustained.
Affirmed.