The original complaint was ex delicto and in case. It counted directly on the “negligent injury” of the animal while in the possession of the carrier, and not upon the implied contract under which the horse was received. The count added, after the demurrer was sustained to the original complaint, is upon the contract with the carrier, and seeks a recovery because of its nonperformance — not delivering the horse uninjured. It is necessarily ex contractu.—Tallassee Falls Mfg. Co. v. Western R’y. of Ala., 117 Ala. 520.
The ruling on demurrer to the original complaint'' is not revisable on this appeal. The question of the permissibility of the amendment after the first count was out was not raised by the demurrer. It could only have been raised by objection to its allowance or by motion to strike out.
' Thé added count is brought in the form prescribed by the Code. — Form 15 and note, Code, p 946. Fault on the carrier’s.part, where fault is essential to fix the liability of the carrier, is a legal implication from the words of the form, though thev do not expressly aver negligence or fault'; and the demurrer on the ground that negligence not alleged was therefore not well taken.
The veneral issue under the Code only puts in issue the material allegations of the complaint. • One of the ma*690terial allegations of the complaint — a necessary legal implication from the words of the Code form — is that the defendant’s undertaking was one with all the liabilities which .the law implies from the delivery of freight to a carrier, to be transported for a reward. Under the general issue, therefore, denial of the contract declared on may be made, by proving the real contract between the parties, if it be different from that declared on. Proof of a special contract is admissible under the general issue, only for the purpose of denying and disproving the plaintiff’s cause of action as stated. Under that plea the special contract can be offered and proved only for the purpose of denial, and raises no other issue. If the defendant wishes to offer the contract for other purposes, as to avail himself of exemptions or particular terms in the contract, he must plead such matters specially; for it is only under such a plea that the special contract can be offered or proved for such purpose.
Defendant’s special plea was not necessary to permit proof of special contract merely in denial of the cause of action stated. Such proof, as we have seen, was admissible under the general issue. The plea, however, plainly intended more than the denial of the cause of action. It sought to interpose in bar affirmative defenses growing out of the contract itself, and necessarily went beyond the scope of the issues under the plea of the general issue. The defense attempted was a proper matter of special plea, not available under the general issue; and if the matters relied on had been properly set out in the. plea the court would have erred in striking it or sustaining a demurrer. The plea, however, is plainly insufficient, and the matter relied on so loosely stated that it was subject to motion to strike. It tendered the mere naked legal conclusion of the pleader as to the construction of the contract, under which the horses were shipped, as a defense to the action, without in any manner stating or referring to the substance or nature of the contract, the consideration on which it was based, or in anywise indicating what terms of the contract relieved the defendant from liability; and it gave no facts by which the court could determine the validity of the contract, or the cor*691rectness of the construction placed upon it by the pleader, or how or in what manner anything done or omitted to be done under “the contract” could affect or vary the rights of the parties.
The horse, the injury to which is the subject of- this suit, was shipped with others under a special contract with the defendant, signed by the plaintiff and defendant’s agent. In consideration of a pass and reduced rates, it was agreed, among other things, that the plaintiff or his agent would “load and unload the stock at his own risk, and feed, water and attend the same at his own risk and expense, while it is in the .stock yards awaiting shipment, and while on the cars, or at-feeding and transfer points, or where it may be unloaded for any purpose.” It was also a term of the contract that in event the owner, went on a passenger train, he must provide an agent to accompany the stock on the freight train, etc. The evidence shows that the horse was injured by being reloaded at Chattanooga, where the stock had been unloaded for the purpose -of feeding them. The agent of the plaintiff testified that “he bought the stock in Texas, and then shipped it to Huntsville, and at that point, reshipped over defendant’s road to Albert-ville.” , How long the stock had been upon the cars when resliipped at Huntsville, does not appear. It does appear that they were placed in a car at that point on the 22d day of October, and that the train left at 3 p. m. that day. They were taken out to be fed next morning at Chattanooga, and reached Albertville about 7 p. m. on the evening of October 24th. The plaintiff’s agent testified that he notified a person, who Avas pointed out to him as the yardmaster at Chattanooga, that he did not wish the stock unloaded.
This stock had probably been confined upon the cars, without food, tAventy-four hours at the time they were unloaded at Chattanooga, and it is a fair inference from the testimony that if not unloaded and fed there, they might be forced to go without food and water and remain on the cars for over twenty-eight hours, by the time they reached their destination at Albertville — thus subjecting the carrier to the penalty prescribed by the revised statutes of the United States. If this were so. the de*692fendant had the right to unload and feed the stock at Chattanooga, whether authorized by plaintiff or pot, or even against his protest. Whether or not defendant would be liable for injury to.the stock in reloading it at Chattanooga, without the consent of the plaintiff, depends upon a variety of considerations. How long had they been confined on the cars, without food, at the time they were fed at Chattanooga? Was it reasonable and proper to feed them there? If the stock had not been fed at Chattanooga, were there facilities elsewhere on the journey to Albertville where they could be properly unloaded and fed, and at what time? How and in what manner was the injury inflicted? Was due care observed by defendant’s servants in putting the horse back on the train, and were there proper facilities and appliances for that purpose at Chattanooga? The charge instructing the jury at plaintiff’s instance, to find for-the plaintiff, if the stock was unloaded at Chattanooga without his consent, was faulty in all these respects.
This charge was also faulty in that it ignored the terms of the special contract, which was offered generally and without objection, and required the shipper to water, feed and attend to the stock at his own risk. If it was proper to unload and feed the stock at Chattanooga; if defendant had proper appliances there and exercised due care in unloading and loading the horses, and subjected them to no unnecessary delay in transportation; and if the injury was one of the risks of loading and unloading, the defendant would not be liable for injury to the horse, under such circumstances. The injury to the horse unexplained put upon the defendant the burden of showing that it happened without fault on its part, and from one of the risks of loading and unloading for the purpose of feeding. The jury could look at all the facts, and whether or not the shipper or his agents remained with the stock; and it was for the jury to say in view of all the evidence whether the defendant was liable. Liability could not be predicated upon the sole consideration that the horses were unloaded and fed without the consent of the shipper or his agents.—S. & N. A. R. R. Co. v. Henlein, 52 Ala. 615; Cent. R. R. & B. Co. v. Smith & Chastain, 85 Ala. 47.
*693The court also erred in not giving the affirmative charge requested by the defendant. The suit was upon 'the common law liability of the carrier. The evidence without dispute, showed a special contract, materially varying the common law liability of the carrier. The plea of the statute of limitations of one year was also interposed, and issue taken upon it. It thus became a good answer to the additional count of the complaint, although if the plea had been demurred to, it would have been held bad; since that count is ex contractu, and not subject to the statute of limitations of one year.
The court committed no error in refusing to charge that “if the injury occurred by the horse slipping on the bridge as he was reloaded,' the verdict should be for the defendant.” This charge ignored all questions as to the propriety of unloading the horse at the time, or the good order and extent of the facilities for reloading, and whether due care was observed by defendant’s servants in so doing.
There was no error in admitting proof that the bill for feeding the stock at Chattanooga was presented at Albertville, and refused to be paid. So far as the testimony was objectionable in not being in rebuttal of testimony presented by the plaintiff, that was matter in the discretion of the lower court. The evidence had a tendency to locate where the injury occurred, and was certainly competent in view of the testimony of the witness Martin who was in charge of the train which brought the car of horses from Huntsville, and saw it unloaded, that the seal of the Huntsville station was on the car, and that those seals were unbroken, etc.
The defendant should have been pérmitted to prove by the witness Ray whether or not he paid for loading and reloading and feeding of the stock at Chattanooga. Plaintiff’s testimony showed that he had not consented to the unloading of the stock at that point. • If he paid the bill therefor, it would be evidence, however slight, which the jury might consider in determining, in connection with the other evidence, whether, in fact, the horses were unloaded without his consent. He testified that after breakfast he saw the horses had been unloaded and were feeding in the stock yard, and is silent as to whether he made any objections at that time.
*694There was no error in refusing to allow the introduction of the records made by the witness Martin as to the seals put upon the car at Huntsville, and their condition where the stock was taken off. These records were not offered for the purpose of refreshing the memory of the witness Martin; nor were they the best evidence of the facts, which were proven by Martin himself from direct personal knowledge, independent of the records.
The judgment must be reversed and the cause remanded.