The opinion of the court was delivered by
Isham, J.The declaration in this case is in the usual form against common carriers; in which it is averred, that the defendants received of the plaintiff several head of cattle, to be safely conveyed by railway from Brandon, in this state, to Cambridge, in the state of Massachusetts. The question arises, whether upon the facts stated in the exceptions, the declaration is sustained by proof that the cattle were transported by the defendants as common carriers, or whether a special contract was made creafing other liabilities, than those upon which the plaintiff has declared.
From the ticket which was delivered to the plaintiff, as well as from the published tariff of freight, which is made part of the case, we perceive that this Railroad Company have adopted two different methods, with different rates of compensation, for the transportation of live stock over this road. In the first place, they have assumed the duties and responsibilities of common carriers; for they distinctly say, that on the payment of 25 per cent advance upon tariff rates, they will safely transport and deliver property of this character at its place of destination, or the station where way-billed. In the next place, if the owner wishes the transportation effected at a less remuneration, they as distinctly state, that on the payment of tariff rates, they will furnish for that purpose, the use of their road, provide suitable cars, and sufficient motive power, so that the stock may be transported at the owner’s risk, and on his own responsibility. In short — for a given reward, they proffer to become his carrier; for a less reward, they proffer to furnish the necessary means, that the owner may be his own carrier. Thus in each case, the defendants have graduated their *255rate of compensation, to the degree of risk they have assumed ; and either mode of transportation, may be adopted at the option of the owner of the stock.
If the owner requests his cattle to be transported by the defendants as common carriers, he has only to pay a reasonable compensation for that purpose, and refuse to enter into any special contract for their carriage on any other terms. In, that event, they are responsible for them safe carriage and delivery. It was so held by Parke, B., in Carr v. The Lancashire Railway Company, 14 E. Law & Eq. 340. It is immaterial, whether transportation of cattle is regarded as their principal employment, or whether it is incidental and subordinate; the fact that they have undertaken such transportation for hire, and for such persons as choose to employ them, establishes their relation as common carriers, and with it the duties and obligations which grow out of it. These general principles have been frequently applied to railroad corporations in England and this country, and they have clearly the right to exercise that corporate franchise whez'e they have power under their charter to transport both “persons and property.” Charter Act 1843 § 1. 1 Smith’s Lead. Cas. 260, 268. Angell on Car. § 78, 109. Walf, on Railways 309 and note, (g.) Palmer v. Grand Junction R. R. Co., 4 M. & W. 749.
We are satisfied that the defendants would be liable as common carriers, and that this case should have been submitted to the jury on this declaration, unless a different relation exists, and different liabilities have been' incurred, by some express contract or agreement made between these parties.
The right of these defezzdants as common carriers to make an express agreement, and thereby change their z-elation, and subject themselves to different'liabilities, is clearly sustained by authorities both English and American. It is unnecessary, to refer to all the cases in England, in which this subject has been considered ; it is sufficient to notice the late case of Carr v. The Lancashire Railway Company, 14 E. Law & Eq. 340, where the various cases are cozisidez-ed, and in which Baron Parke observed, “ That before railways were in use, the articles conveyed were of “ a diffez-ent description from what they az-e now. Sheep azid other “ live animals are now. carried upon railways. Contracts, there- “ fore, are now made with reference to the new state of things, *256“ and it is very reasonable that carriers should be allowed to make “ agreements for the purpose of protecting themselves against the “ new risks, to which they are in modern times exposed. The rap- “ id motion and noise of the engine, with various other matters, “ are apt to alarm them, and cause them to do injuries to them- “ selves. It is reasonable, therefore, that carriers should protect “ themselves against loss by making special contracts.” The authorities in this country are quite uniform, in adopting the same view of this subject. In the case of' New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 Howard 344, the court remarked; “ That a question has been made whether it is competent for the “ carrier 'to restrict his obligation even by a special agreement; “ but we are unable to perceive any well founded objection to the “ restriction, or any stronger reasons forbidding it, than exist in “ the case of any insurer of goods. But it by no means follows “ that he can do so by any act of his own." He has public duties “ to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned. “ This is not to be implied, or inferred from a general notice to the “ public limiting his obligation.” In the cases of Hollister v. Nowland, 19 Wend. 240, Cole v. Goodwin, ibid 272, and Gould v. Hill, 2 Hill 523, it was held in New York that a carrier could not limit his liability, either by notice, though brought to the knowledge of the party, nor by a special agreement; and this doctrine is also sustained by Messrs. Hare and Wallace in their notes to the ease of Coggs v. Bernard, 1 Smith’s Lead. Cas. 280. But since the decision in the 6 Howard R. the courts in that state, in the cases of Parsons v. Monteith, 13 Barb. S. C. 358, and Moore v. Evans, 14 Barb. 624, have receded from the doctrine of those former cases, so far as it respects the competency of a carrier to make a special agreement, and have adopted the views of the U. S. Supreme Court as expressed in the 6 Howard. The rule is j> regarded, therefore, not only sound in principle, but sustained byj¡! authority, that.a common carrier may, by an express contract, or^ agreement with the owner, so vary and change his relation, as to j| become a private carrier. In that event his liability in the trans- (■ portation of that property is measured by the specific provisions of his contract; but a general notice to the public, limiting his obligation as such carrier, will afford no evidence of .such contract. *257either express or implied, though the existence and contents of that notice, are brought home to the actual knowledge of the party. The implication is as strong, that the owner intended to insist upon his rights, and the duties of the carrier, as it is that he assented to their qualification.
Was such an express contract, or agreement, made in this case, in relation to the transportation of these cattle ? It is necessary to determine this question, for it is purely one of law. It was so treated by the county court when they ruled, “ That if the jury found all the facts to be 'true which the evidence tended to prove, their verdict should be for the defendants.” This question was held to be one of law merely, in the late case in the English courts, of York, Newcastle & Berwick Railway Co. v. Crisp, 23 L. J. 125. Law Register for August 1854. In that case the question arose whether the defendants were common carriers, or whether the cattle were received under a special contract, on the terms contained in a ticket which was delivered to the owner of the cattle. The matter was submitted to the jury. Exceptions being taken, the court of common Bench observed: “That the judge who tried “ the case was guilty of a misdirection in leaving it to the jury to “ say whether the defendants were common carriers of cattle for “ hire, or whether they were received under a special contract; “ and that he ought to have told the jury, that there was either a “ special contract, or no contract at all.” There was no error, therefore, in this case, in the disposition of that question by the court, as a matter of law. We are satisfied also, that the court-were correct in ruling that an express contract was made by the parties, for the transportation of these cattle.
Whether the defendants would have been liable as common carriers, if they had refused to transport these cattle except on the terms of an agreement exonerating them from all liability, or restricting their common law responsibility, we are not called upon definitely jo decide. It cannot be said in truth, that a voluntary contract was made, where the terms are imposed by one, and the other has no power to repel them. In Noyes’ Maxims ch. 43, p. 110, it is said, “ That if a carrier refuse to carry unless a promise were made to him, that he shall not be charged with any such misdemeanor, that promise is voidand this doctrine is approved of, by Ch. J. Best in Newborn v. Just, 2 C. & P. 76, and in the notes *258of Messrs. Hare and Wallace, 1 Smith’s Lead. Cas. 279. These defendants, however, did not refuse, on the payment of 25 per cent, advance on tariff rates, to receive and transport these cattle as common carriers, and at their risk; and that reward must be considered as reasonable, as no suggestions are made to the contrary. It is for the benefit and advantage of owners of live stock, that a special agreement may be made, that on the payment of a less sum, they may become their own carriers, and have furnished for them the necessary means for that purpose.
When this plaintiff, therefore, chose not to pay the required compensation to have his cattle transported by the defendants as common carriers, and at their risk, but elected to pay the lower rate, it is reasonable that he should be bound by his own election. In addition to this, the plaintiff states, that he made a contract for the use of a car, and was to have the same privileges as others had, agreeable to the freight tariff. For that privilege only did he make application; and for that only did he pay. It would be unreasonable, therefore, that the plaintiff should now hold the defendants responsible as common carriers, and charge them with a risk and responsibility, which they were not requested to assume, and for which they were never paid. We think the matter very clear, that a special contract was made, in respect to the transportation of these cattle; under which, the defendants, in the exercise of reasonable care, were to furnish the plaintiff with a suitable car, and other necessary means for transportation; and the plaintiff was to assume the risk, and general responsibility of their transportation.
The remaining question arises, whether, if that special contract has been broken, and damages thereby sustained in the transportation of the cattle, a recovery can be had in this case, under this declaration. In actions on the case, in form ex delicto, where the obligation of the defendant consists in the observance of someyiarticular duty, the declaration must state the nature of that duty; and where the duty arises from some particular relation or character in which the defendant stands, that relation or character should be stated; and if in either of these particulars, the duty or relation as stated is different from that which is proved, the variance is fatal. 1 Chitty on Plea. 369. The defendants are charged in the declaration as common carriers, upon whom the law casts the *259duty of safely transporting and delivering the property at its place of destination, unless prevented by the act of God, the public enemies, or the fault of the party complaining. For that reason the liability arising from the relation of common carriers cannot be changed by any act of their own. Under the express contract which is proved in this case, the defendants were not common carriers ; but were pro hac vice private carriers merely. Their obligations and duties arose from contract, and therefore may be modified by contract. In the case from the 6 Howard, Justice Nelson observed: “ That the owner by entering into a contract “ virtually agrees, that in that particular transaction the carrier is “ not to he regarded as in the exercise of his public employment; but “ as a private person, who incurs no responsibility beyond that of “ an ordinary bailee for hire, and answerable only for misconduct “ or negligence.” The same doctrine is sustained in the cases of Parsons v. Monteith, 13 Barb. 358, Moore v. Evans, 14 Barb. 524. Angelí on carriers § 46, 54, 59. It is quite obvious in this case, that the duties and relation assumed by the'defendants under this contract are different, and vary from that with which they are charged in this declaration. The terms of the agreement do not simply affect the damages -to be recovered, or -create obligations consistent with the relation of common carriers, as was the case of Clark v. Gray, 6 East. 564, but they extendió the obligation of the contract itself. Their relation is changed from that of common carriers to private carriers; and where such is the effect of their special agreement, they are mot liable as common carriers, neither can they be declared against as such. It is possible, that there has been a breach of that express contract, and the plaintiff is, perhaps, entitled to damages for the injuries he has sustained; but the action should have been brought on. that contract, or for a breach of duty arising out of it, and not on the duty and obligation imposed on common carriers. This matter has been directly decided in the cases of Shaw v. York § Midland Railway Co., 66 Com. Law 345, and Austin v. The Manchester §c. Railway Co., 5 E. Law & Eq. 329. In the last case Patterson J. remarked, “that if the declaration is founded upon the liability of the defend- “ ants at common law, it is disproved, as the evidence shows they “ were liable not as common carriers, but under a special contract,” and for that reason he observed, “ I am of opinion that there is a *260“ variance, and that the rule must be discharged.” In this opinion, Coleridge, Wigi-itman, and Earle, Justices, agreed. For the same reason, therefore, we think the judgment of the County-Court in this case must be affirmed.