The defendant, a granite worker at Barre, Vt., having a job ready for shipment, called on the plaintiff for a car, and loaded it with his work, taking from the plaintiff’s billinlg clerk a bill of lading which named a party at West Seneca, N. Y., as consignee, and provided that the freight should be paid by the consignee or owner.
The plaintiff’s evidence tended to show that soon after issuing the bill of lading, and before the car left the yard, the clerk discovered that West Seneca was a pre-pay station, i. e., one having no agent to collect freight, so that the car would not be forwarded by connecting roads unless the way bill was marked “pre-paid,” which meant that the freight had been paid or guaranteed by(the shipper; that the clerk immediately notified the defendant and the defendant promised to< pay the charges if the plaintiff would forward the car; whereupon the plaintiff did forward the car, marking the way-bill “pre-paid,” *406and afterwards paid the connecting roads the freight charges, which it now seeks to recover of the defendant.
The defendant’s evidence tended to1 show that he was not thus notified, and did not so agree; and that the only contract was that shown by the bill of lading.
The plaintiff claimied to recover solely by virtue of the special agreement. A verdict was returned for the defendant.
We consider the exceptions in the order in which they are presented by the plaintiff’s brief.
1. The bill of ladinlg was properly admitted as one step in the transaction.
2. The defendant offered to show that, when freight was to be pre-paid, it was the plaintiff’s custom to indicate that fact upon the bill of lading, whereas th'e bill here contained no such indication. The court properly ruled that this might be shown; and although the defendant, who so testified upon direct examination, admitted upon cross-examination that he had never shipped to a pre-pay station except in this instance, that did not malee the previous ruling erroneous, but only served to weaken or destroy the witness’ testimony.
3. The defendant offered to show that he had no title to the stone after it was loaded on th'e- car. The plaintiff objected that it was immaterial. It was properly admitted, as against that objection, for it might well be argued that the de?fendant was less likely to have agreed to pay the freight if he had already parted with the title.
4. The testimony here excepted to was admitted as tending to establish the agency of a party whose declarations were to be offered in evidence to bind the plaintiff. But when the declarations came to be offered they were excluded. So this exception is immaterial.
5. In addressiñg the jury, defendant’s counsel stated that defendant lost the chance to protect himself for the freight; *407to which plaintiff’s counsel objected and excepted. The allowance of the exception, standing as it did, alone, was a ruling that the statement was proper. Defendant’s counsel still insist that it was proper, and for the reason that the evidence tended to show that the railroad delivered the stone to the consignee without first demanding the freight. But the case was submitted upon the theory that the plaintiff must show that the defendant undertook to pay the freight, not that he undertook to pay it if the consignee should fail to do so. Therefore, the defendant had no right to' ask the jury for a verdict on the ground that, even if he had promised to pay the freight, he ought not to be compelled to do so because the plaintiff had failed to require or demand payment of the consignee. Such argument, countenanced and approved by the court, was likely to be prejudicial and might well prove controlling. This exception must be sustained.
6. The motion in arrest was properly denied, for it reaches only matter of record, and the record in this sense does, not include evidence. So, likewise, was the motion to set aside the verdict, no ground being stated therefor; and the motion to render judgment for the plaintiff notwithstanding the verdict, such a motion being wholly inappropriate in any view of the case.
Judgment reversed and cause remanded.