1. The first count in the complaint follows form 15, p. 793, of the Code of 1886, for a suit “On a bill of lading of a common carrier.” Hutchinson in his work on Carriers, section 744, referring to the character of this action, states, that in former times it was a very perplexing question how the form of the action, — whether in case or assumpsit, — should be.distinguished, and adds, that it seems “to be .finally settled, that while the allegation of a promise in the declaration will not be sufficient to' impress upon it the distinctive feature of a declaration upon the contract, because the words ‘agreed,’ ‘undertook,’ or even the more significant word ‘promised,’ must be treated as no more than in*524ducement to the duty imposed by the common law, yet if there be an averment of a promise and a consideration,, the declaration must be construed to be upon the contract, and not for the breach, of duty.” The count under consideration alleges both a consideration and a promise. In keeping with the principles thus announced, we have held, more than'once, and latterly, that this form of action is one ex contractu and not ex delicto, and to such conclusion we adhere.—Holland v. Southern Express Co., 114 Ala. 128 ; McDaniel v. Johnston, 110 Ala. 526 ; McCarthy v. L. & N. R. R. Co., 102 Ala. 193 ; A. G. S. R. R. Co. v. Eichofer, 100 Ala. 227.
2. The second count declares on the contract itself, and cannot be pretended to be in case. Such a count could not be joined with one in assumpsit. — 3 Brick. Dig. 704, § 57.
3. Where one sues a common carrier by reason of the default of the latter, whereby an injury or loss has happened to him, whether the action be based on a breach of duty or upon the contract, it is “necessary for the plaintiff to show a delivery of the goods to him, an undertaking or contract on his part, either express or implied, to transport them as alleged, and a failure to perform the contract or his duty according to his understanding.” — Hutchinson on Carriers, § 795. Again, the same author says, “The contract with the carrier may be express or implied. If it be express, it should be proven, whether the action be in tort or assumpsit,” etc. §762.
Mr. Greenleaf on the same subject says : “Oral proof cannot be substituted for the written evidence of any contract, which the parties have put in writing. Here, the written instrument may be regarded, in some measures, as the ultimate fact to be proved, especially in negotiable securities; and in all cases of written contracts, the writing is tacitly agreed upon, by the parties themselves, as the only repository and the appropriate evidence of their agreement. The written contract is not collateral, but is of the very essence of the transaction.” — Greenl. Ev., § 87.
“In the transportation of freight [as this court has said in L. & N. R. R. Co. v. Fulgham, 91 Ala. 556], the bill of lading embodies the contract between the shipper and the carrier, and when delivered • by the carrier and *525received by the shipper, its terms, stipulations and conditions-are as binding on the parties thereto, as are the terms, stipulations and conditions of any other written contract. A bill of lading is, therefore, to be taken as the sole evidence of the fina] agreement of the parties, by which their duties and liabilities must be regulated, and parol evidence is inadmissible to vary its terms or legal import.”
It is manifest from what has been said, that the lower court did not err in excluding the evidence offered by the plaintiff.
Affirmed.