In an action of assumpsit, where the contract is of the very essence of the action, greater exactness in pleading is demanded than where the action is in tort, and the contract is referred to merely by way of inducement. In an action on a contract, even a trivial variation is often fatal, because it destroys the identity of the contract. Curley v. Dean, 4 Conn., 264; Russell v. South Britain, 9 Conn., 512.
The declaration in the case under consideration predicates the defendants’ liability, not upon negligence merely, but upon the fact that the defendants are common carriers, and as such received the goods in question to be safely kept, carried, and delivered to the plaintiff at Middletown. In short, the contract set up makes the defendants insurers of the goods so received against all -losses except those occurring from the act of God or the public enemies. The contract proved is the one embodied in the bill of lading, which is incorporated in the motion. If this is valid as a contract it clearly reduces the defendants’ liability to that of an ordinary bailee for hire, making a very substantial variation between the allegation and the proof.
It is conceded now by all modern authorities that common carriers may stipulate for a diminished degree of responsibility from that which is imposed upon them by the rigorous rules of the common law. Courts now differ only as to how far considerations of public policy will allow the stringency of the ancient- rule to be relaxed by mutual special agreement between the parties. The English courts now hold that it is *340possible for carriers to stipulate with the owner or consignor of goods for entire exemption from responsibility in the transportation, not excepting negligence. Gallin v. London & North Western Railway Co., Law Reps., 10 Q. B., 212. The American courts generally hold that, inasmuch as the parties are not in equally- independent positions, and the stress of circumstances might virtually compel the owner of the goods or his consignor to submit to the carrier’s demands, they will reserve the right to pass upon the reasonableness of the particular contract as made, and they will not allow the carrier to exempt himself by special contract from the consequences of his own negligence or that of his servants and employees. But it seems now to be everywhere conceded that such a contract as was made in this case,'which did not attempt to exempt the defendants from the consequences of their negligence, will be sustained. York Co. v. Central R. R. Co., 3 Wall., 107 ; New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How., 382; Railroad Co. v. Lockwood, 17 Wall., 357; Grace v. Adams, 100 Mass., 505; Adams Express Co. v. Haynes, 42 Ill., 89; Lamb v. Camden & Amboy R. R. Co., 46 N. York, 271; Cochran v. Dinsmore, 49 N. York, 249; Welch v. Boston & Albany R. R. Co., 41 Conn., 333.
The courts in the state of New York at first adopted principles substantially in accord with the cases above cited, but they have been gradually relaxing the rule of responsibility for carriers in favor of special contracts, until they now hold that such contracts, even to cover negligence, may be upheld, provided the language used by the parties is sufficiently clear and specific to indicate that such was the intent of the parties. Magin v. Dinsmore, 56 N. York, 168; Knell v. U. States & Brazil Steamship Co., 33 N. York, 423.
We have no doubt but that the contract in the case at bar was valid within the purview of all the modern authorities. It would be sufficient for the purposes of this case if it was only sustained by the principles adopted by the courts of New York, where the contract was made, as the laws of that state would govern.
Our conclusion therefore is, that the contract proved is *341essentially different from that alleged, and that there is a fatal variance between the allegations and the proof. As sustaining this result we refer to Latham v. Rutley, 2 Barn. & Cress., 20; Crisp v. York, Newcastle & Berwick R. R. Co., 14 Com. Bench R., 527; White v. Great Western Railway Co., 2 Com. Bench N. S., 7; 1 Chitty’s Pleading, 309.
The plaintiff claims that the defendants waived the right to insist on this variance by omitting to object to the bill of lading when first offered in evidence. In some cases such an omission would be held a waiver, but we think it ought not to be so held under the circumstances of this case. The bill of lading was offered by the plaintiff for the purpose of showing the receipt of the goods by the defendants, for which purpose it was clearly admissible. It must therefore have been received, notwithstanding an objection, and it was as well to ask the court in its charge to give construction and effect to it, as to have had a ruling at the time it was offered. And besides, the bill of lading was necessary for the defense, and would have been introduced by the defendants to show that the contract declared on was not' the contract under which the goods were received. And furthermore, it was the duty of the court to instruct the jury correctly as to the foundation of the defendants’ liability, and whether it arose out of this special contract or from the common law relation of common carriers. The instructions asked for on this point were correct and adapted to the case; but the instructions as given were incorrect. So that, at all events, the defendants are entitled to a new trial; which is advised.
In this opinion the other judges concurred; except Pabdbe, J., who did not sit.