delivered the opinion of the court:
Truax, who- signed the shipping contracts-, was in the employ of plaintiffs, and had been for a number of years. He had charge of the shipment' and superintended the loading. Authority to deliver stock to a common carrier for shipment includes all the necessary and usual means of carrying it into-effect, so that the agent of the owner entrusted with its shipment, in the absence of notice to the carrier to the contrary, will be presumed to have authority to bind the shipper by a contract of shipment, in so far as such contract is valid. — Nelson v. Hudson River R. R. Co., 48 N. Y. 498; Hill v. Boston, H. T. & W. R. Co., 144 Mass. 284.
The evident purpose of the testimony of Truax with respect to the circumstances under which he signed the shipping contracts was to relieve the plaintiffs from the terms and conditions thereby imposed. It is not charged by any pleading on the part of plaintiffs that the defendant company was guilty of any fraud, duress or bad faith in obtaining these contracts, *421or that they were executed by mistake. A defense upon either of these grounds, to be available, must be pleaded by stating the facts upon which it is predicated. — Starbird v. Cranston, 24 Colo. 20; Arthur v. Gard, 3 Colo. App. 133.
A mere denial of the execution of the contracts was not sufficient to make an issue on either one of these questions; consequent^, the testimony referred to was not competent.
But, aside from this conclusion, the testimony of T'ruax to the effect that he was told by the agent that he had tO' sign; that the contract was his pass; that he did not read, nor was he asked to read, the contracts, does not establish either mistake, fraud or duress. To hold that from these circumstances he was induced to sign contracts by fraud, or duress, or that from his sixteen 3'ears’ experience in handling cattle on railroads, he did not know what he was signing when he signed the contracts, would attribute' to him a lack of intelligence wholly at variance with the intellectual abilit3r which his examination as a witness disclosed he possessed.
In this connection it is also proper to1 note, that one of the plaintiffs was present when the cattle were loaded. He was the manager of the partnership business. For a period of fifteen or eighteen years he had been engaged in shipping between three and five thousand cattle annually from Arizona to Denver. With this experience it must be presumed he knew that Truax, the agent of the partnership, would be required to sign contracts for the shipment of which he was in charge.
Plaintiffs admit, by their replication, that they did not give written notice of any claim for damages before the cattle were removed from the place of delivery. The record discloses that whatever cause of action plaintiffs had against the defendant accrued August 21st, 1901. Their action was not commenced until July 3rd, 1903. The next question to consider, then, is, whether or not the stipulations in the contracts, requiring written notice to be given of a claim for damages, before the cattle were removed from the place of delivery, and that suit for any claim for damages must be brought within six *422months after damage to the shipment occurred, and the further provision incorporated in each of these stipulations to the effect that a failure to comply therewith shall be a complete bar to any action to recover such damages, are valid. Stipulations, of this character have been SO' well-nigh universally upheld as valid, and it has so often been decided that a failure to comply therewith bars an action for damages, unless the period within which an action is to be brought is so short-as to' be unreasonable, or that the conditions thereby imposed have been waived, that it is only necessary to refer to a few of the many cases sustaining them. — Adams v. C. & S. Ry. Co., 49 Colo. 475, 113 Pac. 1010; Gulf, Colo. & S. F. Ry. Co. v. Trawick, 68 Tex. 314; Gulf, Colo. & S. F. Ry. Co. v. Gatewood, 79 Tex. 89; Central Vt. R. Co. v. Soper, 59 Fed. 679; Thompson v. C. & A. Ry. Co., 22 Mo. App. 321; Riddlesburger v. Hartford Ins. Co., 7 Wall. 386; Goggin v. K. P. Ry. Co., 12 Kan. 416; Sprague v. Mo. Pac. Ry. Co., 34 Kan. 347; W. & W. Ry. Co. v. Koch, 47 Kan. 753; Kalina v. R. Co., 69 Kan. 172; A. T. & S. F. R. Co. v. Crittenden, 44 Pac. (Kan.) 1000; Smith v. C. R. I & Pac. Ry. Co., 112 Mo. App. 610; Damson v. St. L. K. C. & N. Ry. Co., 76 Mo. 514; U. S. Express Co. v. Harris, 51 Ind. 127; Southern Ry. Co. v. Adams, 42 S. E. (Ga.) 35; Express Co. v. Caldwell, 21 Wall. 264; B. & O. S. W. Ry. Co. v. Ross, 105 Ill. App. 54; The Westminster, 127 Fed. 630; Hatch v. Minn., St. P. & S. S. M. Ry. Co., 197 N. W. (N. Dak.) 1087; Southern Ry. Co. v. Tollerson, 59 S. E. (Ga.) 799; 1 Hutchinson on Carriers, 3rd Ed., sec. 442.
Such stipulations, in brief, are upheld upon the theory that they are not opposed to public policy; that they are reasonable, and do not in any manner exempt the common carrier from negligence; but are conditions of recovery, and not exemptions from liability, which the carrier may lawfully include in its contract of shipment for the purpose of protecting it against fictitious and unfounded claims for damages.
The time fixed by the contracts within which an action should be brought appears to be reasonable, and as plaintiffs *423did not give -the notice required, or bring their action within the time limited, their right to maintain it is barred, unless, as claimed by their counsel, these provisions have been waived. In answer to this contention, it is only necessary to say that the waiver of a provision in a contract of carriage limiting the time within which suit must be brought, or requiring, as a condition precedent to the maintenance of an action, that written notice of a claim for damages must be given, as required by the contracts under consideration, when such limitations and conditions are pleaded as a defense, is a matter of confession and avoidance; and in order that a party may avail himself of such waiver the facts constituting it must be specially pleaded. ■ — Boone v. State Ins. Co., 37 Minn. 426; Willits v. C. B. & K. C. Ry. Co., 80 Iowa 531; Ehrlich v. Aetna Life Ins. Co., 103 Mo. 231; 18 Ency. PI. & Pr. 717-718.
Plaintiffs have not complied with this rule by the averment of any facts excusing their failure to give the written notice required, or to bring their action within the period fixed by the contract of carriage either in their complaint or replication.
Several other questions have been argued by the respective counsel, which we do not deem it necessary to consider.
The judgment of the district court is reversed and the cause remanded for further proceedings in harmony with the views herein expressed. On proper application, either of -the parties should be permitted to amend their pleadings as they may be advised. Reversed and Remanded.
Decision en banc.
Mr. Justice Musser, Mr. Justice White and Mr. Justice Hill dissent.