dissenting. In these cases I cannot concur in the judgment of my brethren for the reasons herein stated. [Here follows his statement of the case.] "We will not follow the exceptions, but endeavor to dispose of the questions as they arise in order. First, as to the contract between the parties. The exceptions charge in various forms that it was error to leave it to the jury to decide what was the contract between the parties; that the only contract was the printed bill of lading; that all previous verbal negotiations upon the subject were absorbed into that, which became the only contract between the parties..
We believe it is the general rule in such cases where there have been no previous negotiations, to consider the bill of lading, although not signed by the shipper, given on one side and accepted by the other, as the contract of the parties. But when there has been a previous general engagement on the subject, the question often arises whether the shipment was made on the terms of the bill of lading or upon the faith of the previous arrangement. The rule of evidence is that “ Parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument, * * * but the rule is not infringed by the admission of parol evidence showing that the instrument is altogether void, or that it never had any existence or binding force either by reason of fraud or for want of due execution, or for the illegality of the subject-matter. 1 Greenl. Evid., § 248.
In this case the plaintiffs denied that they had ever accepted the terms proposed in the printed receipt, which was not signed by them, or made any such contract, but, on the contrary, insisted that the only agreement they had made was that made in Columbia by President Hammet with the general freight agent of the defendant corporation, in which nothing was said about limiting'liabilities, but was as follows: “ We shipped goods on November 22d, 1880, to Woodward, Baldwin & Norris; were delivered on that day at Piedmont to be carried to Baltimore. All our arrangements for shipment and through rates were made with the general freight agent of Columbia and Greenville Railroad Company. We were to pay fifty-six cents for one hundred *375pounds of freight to Baltimore. No contract as to limiting liability ■of defendant was made or ever alluded to.” They insisted that upon the faith of this agreement alone they had shipped the domestics in question, and the defendant corporation could not at the last moment, after the property had been actually delivered, interpolate upon that contract new terms and conditions never submitted before nor agreed to by them.
The question as presented was not as to altering the terms of a written agreement, but whether the paper contained a contract .at all. It certainly requires two to make a contract. It is ■elementary “ that in order to constitute a binding contract there must be a definitive promise by the party charged, accepted by the person .claiming the benefit of such promise. There must be a request on one side and an assent on the other. No contract is raised by a mere ex parte affirmation in discourse, a mere assertion, or offer to enter into an agreement not expressly and absolutely assented to by both parties.” Chit. Cont. 9. Both parties must assent in the same sense. If the printed bill of lading had been before Hammet and the agent in Columbia when they made the general arrangement, and its terms had been agreed to, then it would have been the written contract of the parties beyond the reach of alteration by parol evidence, and to be construed by the judge alone. But whether the various .stipulations in the receipt were ever agreed to and became the •contract of the parties was a very different question.
It is true that the bill of lading seems to have been offered in •evidence by the plaintiffs, probably because it contained the receipt of the defendant for the property; but it does not follow that they are bound by the numerous conditions, exceptions and alleged agreements therein. Ordinarily a receipt is only evidence of a single fact, the closing fact of a transaction, and the act of but one of the parties. We would not expect to find in it original terms and conditions stated as agreed to by two' contracting parties. “A receipt in itself does not express the terms of any •contract or writing of the words of the parties between whom it has passed, but merely evidences, by way of admission, the fact stated in it, consequently it is not governed by the rules which prescribe the effect of instruments adopted by parties as the *376special means of evidencing some compact or understanding had between them, but like evidence not enjoying any special privilege, is capable of being contradicted or modified by other classes of evidence.” Heath v. Steele, 9 S. C. 92.
It could not be assumed conclusively that the Piedmont Company had agreed to the terms of the receipt, only because it was retained by the person, possibly a mere employe, who-delivered the property at the depot. Whiting v. Sullivan, 7 Mass. 107; Bostwick v. Railroad Co., 45 N. Y. 712; Hutchinson on Common Carriers, § 238, and Lawson on Contracts of Carriers, § 101. It seems to me that the point is fairly stated by Mr. Lawson at page 138, when he says : “ When the shipper of goods, who has previously entered into an oral agreement with a common carrier, takes a receipt for the same, he has a right to assume, in the absence of notice to the contrary, that his agreement is embraced in the paper, or at least that his receipt contains nothing to the contrary, and that it is in the nature of a fraud on the part of a carrier, having entered into such oral agreement, to insert in the receipt a contract of an entirely different character and present it to the shipper without calling his attention to it or getting his assent.” The question of what was the contract, whether the general agreement in Columbia, or the paper handed to the servant when the bales were delivered at the depot, was one of fact, and I cannot say that the judge erred in submitting it to the jury.
Assuming then, as we may do, that the jury found that the conditions expressed in the printed bill of lading were never agreed to by the Piedmont Company, but that the bales of domestics marked for Baltimore were sent to the depot under the general arrangement entei’ed into by the president at Columbia,, the verdict might be rested on that alone and go no further. In this view the defendant corporation undertook to transport the property to Baltimore; in the words of Mr. Hammet, that it-was to be “carried to Baltimore” and there delivered to Woodward; Baldwin & Norris, to whom the bales were directed.This arrangement was made with the defendant corporation alone, without any reference to the means by which it was to be done or limitation as to responsibility. There was no privity of *377contract with any other company whatever. So far as appears, the defendant corporation or its agent had no authority to make-a contract binding upon intermediate companies for their respective shares of the service to be rendered; but they, without any reference to any such agencies, undertook themselves to give through transportation, to do or have done the whole work and to deliver in Baltimore, thereby, as I think, making for that purpose and to that extent, all connecting lines their agents, or, as it were, extending their own road to Baltimore. If their own track did not actually extend to Baltimore, they, nevertheless, undertook the business through to that point and received pay for it, and they cannot now be permitted to disclaim their own contract or escape the liabilities incident to it.
If time permitted I might review the numerous authorities upon the subject, but we can only deal with conclusions. After-much discussion and some difference of opinion, we regard the law as properly held, both On principles of justice and the preponderance of authority, in the well-considered case of “ The-Nashua Loch Company v. The Worcester and Nashua Railroad Company, 48 N. H. 339, where, after a full review of the authorities, it was held that, “ When several common carriers are associated, in a continuous line of transportation, and in the-course of the business goods are carried through the connected lines for one price, under an agreement by which the freight-money is divided among the associated carriers in proportion fixed by the agreement; if the carrier at one end of the line-receives goods to be transported through, marked for a consignee at the other end of the line, and on delivery of the goods takes pay for transportation through, the carrier who so receives the goods is bound to carry them or see that they are carried to their final destination, and is liable for an accidental loss happening at any part of the connected line.”
I refer to this case for the authorities cited, and the reasons upon which the doctrine is based. This New Hampshire case was much stronger than the one in hand. There the initial company was held liable for doing nothing more than receiving and transporting the goods marked to be delivered at a point beyond their own road. Here this was done, but there was also *378an agreement that the goods should “.be carried to Baltimore;” that is, delivered in Baltimore. Upon this very point as to what shall be regarded as sufficient evidence of an undertaking to transport through, there has been much diversity of opinion in the American courts, which (Mr. Hutchinson informs us at sectio.n 148 of his book on Carriers) are about equally divided on the point “whether a carrier receiving goods marked for delivery beyond the end of his line is, in the absence of special agreement, only responsible for safe carriage- over his own line and safe delivery to the next carrier.” See late Tennessee case of the Louisville & Nashville Railroad Company v. Weaver, 9 Lea 39, and 42 Am. Rep. 655, and notes. I believe that when "the company receiving the goods is known to be one of a continuous line of associated companies, and there was, as here, a special agreement of the initial company to transport through, there has never been a doubt expressed in any court.
It is, however, earnestly urged on the other side that the defendant corporation was a common carrier by law only as to their own road, and that their duties should be correlative to their rights and not beyond; that as to so much of the Columbia agreement as was to be performed beyond Columbia, the ■company must be considered as an individual undertaking to transport certain bales of goods for hire, which single transaction would not make him a common carrier or subject to the rigorous liability imposed upon carriers. The obvious answer to this is that the defendant corporation, when they agreed to transport these goods, was already a common carrier all the way to Baltimore, by virtue of their being engaged with the associated lines in the regular business of through transportation to that point.
The transportation of the few bales of domestics in this case was not a single, isolated act for accommodation or compensation, but one of the acts done in the course of through business, in which they were regularly engaged. It appeared that they canvassed for through business, had arranged the price for which they could do it, and prepared a most elaborate through-receipt. As Mr. Hammet proved, they were at that time engaged in extensive through business “ shipping over these routes.” As I *379understand it, common carriers are not limited to those created by charter, but may become such by virtue of their occupation. Railroad Company v. Lockwood, 17 Wall. 357. Mr. Tomlinson, in his Law Dictionary, says: “All persons carrying goods for hire, as masters and owners of ships, lightermen, stage coachmen and the like, come under the denomination of common Car-Tiers.” In the case of Clarke v. Swearingen, 6 S. C. 292, Mr. Swearingen was treated as a common carrier, for the reason that during the winter months he was engaged in the business of boating cotton for hire down the Savannah river to Augusta.
The Greenville Company were common carriers to the extent ■of their road by charter, and beyond that by virtue of being engaged in the business of through transportation. Their liability as common carriers should not be measured by the length ■of their road, but by the extent of their undertakings in their business of through transportation either by themselves or in connection with other associated lines. We think there was competent evidence before the jury that the company undertook to carry this property to Baltimore, and the jury having found such to be the fact, the other companies are to be deemed the agents of the defendant, for whose fault they are responsible.” Railroad Company v. Pratt, 22 Wall. 133. A man who owns .a private ferry may make himself a common carrier if he undertake to carry for hire all persons indifferently. Littlejohn v. Jones, 2 McMull. 368. And this is a question of fact to be determined by the jury. Ibid.
The law is so well stated in the case from Tennessee (as late as 1882) above cited, that I will yenture to make a somewhat long quotation : “ It is well settled that a railroad company, as a common carrier, may contract to carry to a point beyond the terminus of its own line so as to become liable for its delivery at that point, and that the liability thus attaching at the commencement, will continue throughout the whole transit, all connecting lines •of carriers employed in furthering and completing such transportation, becoming its agents, for whose defaults it is responsible. Railroad v. Stockard, 11 Heisk. 568; Hutch. Carr., § 145. But the courts are not in accord as to what will, prima facie, constitute such a contract.
*380“In England the courts from the first adopted the rule, to which they have formerly adhered, that when a railroad company, as a common carrier, receives goods directed to a place beyond the terminus of its own line, without limiting its responsibility by express agreement, such receipt of the goods so directed is prima facie evidence of an undertaking to carry the goods to the place to which they are directed, and all connecting railroad companies, or other carriers along the route, are merely the agents of the first company. The latter is alone subject to suit for any loss or damage to the goods, the other companies not being-responsible to the owner for want of privity of contract. Muschamp v. Railway Co., 8 Mees. & W. 421. The rule, founded as it is in common law principles, has much to recommend it by reason of its uniformity and simplicity, and has been found to work well for the comparatively short distances of carriage on the British island. It has been followed by the courts of a number of States in this country, but modified, generally, so as-to give an action against the carrying company actually guilty of the wrong out of which the cause of action arises, although not the original contracting company. All of the American courts, perhaps, except it may be those of Georgia, concur in adopting the English rule, with the modification suggested,, wherever the contract is clearly a through contract, or the circumstances show that the contracting company has an interest,, or partner, or otherwise, in the entire route. Hutch. Carr., § 160. The courts of the State of Georgia seem to have adopted the English rule without qualification. Many of the States have been led to modify the rule, not only in allowing the actually ■ defaulting carrier,- other than the first, to be sued, but in the matter of the prima facie evidence of a through contract and the burden of proof,” &c.
In the case at bar there was no need of resorting to the rule as to prima facie proof of the contract; the proof was positive, and besides the circumstances showed most conclusively that the contracting company had an’ interest in the through transportation “as partner or otherwise.” This was properly a question for the jury, and they have so found.
But, suppose we assume that the person who carried the *381■domestics to the depot at Piedmont had the authority to act for the company in receiving the printed receipt with the numerous stipulations embodied therein, and the jury found that to be the only contract between the parties: I incline to think that, even in that case, the verdict should stand. At the time these goods were shipped the act of 1864 was of force in this State. It has since been superseded, but we must consider it in determining the rights of these parties. Section second declared: “ That no public notice, or declaration, or special contract shall limit or in any Avise affect the liability, at common law, of any railroad company Avithin this State, for or in respect of any goods to be carried and conveyed by them, but such railroad company shall be liable, as at common law, to answer for the loss of or injury to any articles or goods to be carried or conveyed by them, any public notice, declaration or special contract by them made and given contrary thereto, or in any wise limiting such liability, notAvithstanding.” Rev. Stat. 366.
The defendant corporation was a “ railroad company within this State,” and, of course, subject to the law, and there can be no doubt that, according to its terms, the exemptions from liability inserted in the bill of lading, Avere void and of no effect so far as they concerned transportation on the track of the Greenville and Columbia Railroad Company proper. But it is insisted that the liabilities of the company must be limited to their own road; that not being carriers beyond, they were not compelled to take the business, and if they did so they had the right to attach their OAvn conditions, and the provisions of the act did not apply to any agreement to transport beyond Columbia.
This might be so if this had been a single act of transportation, undertaken by contract for the accommodation of the Piedmont Company, but Ave have already endeavored to show that, by engaging in the business, they had previously acquired the character of a common carrier as to the through transportation, and must be held to an accountability as such. If so, was not a contract as to that business as much under the inhibitions of the act as business upon their own rails ? It has been decided in this State that the agreement of a railroad company to deliver articles at a point beyond the terminus of their own road, made *382them liable as carriers until the point was reached and the articles delivered. Kyle v. Laurens Railroad Company, 10 Rich. 382; Hutch. Carr.
In the case of Kyle, the plaintiff shipped cotton on the Laurens Railroad, to be delivered in Charleston; two other roads had to be used in reaching Charleston; part of the cotton was lost after it left the lower terminus of the Laurens road, and yet it was held that the Laurens Company was liable for the loss, “ their undertaking being special to deliver in Charleston.” That is to say, their contract as carriers extended beyond their own road to the point of delivery.
But it is said while that may be so as to roads within the State, the principle does not apply and our State law did not reach transportation on railroads beyond the limits of the State. I do not understand why not. I do not see why the South Carolina law which applies to railroads in the State, should not apply to them as well while running the road of another company beyond this State. In either case one carrier is using the road of another carrier in doing carrier business. Both are carriers and it would seem that the one which undertakes to transport the property should be subject to the law applicable to common carriers in the State where it is located, and the contract is made. The contract was an entirety for the whole distance, made in the State, to be paid in the State, and to a corporation of the State, and I suppose the fact that the property was to be carried beyond the State through other associated lines, could not change the rule which requires that a contract shall be construed according to the lex loci contractus. McDaniel v. Railroad, 24 Iowa 412; Cantu v. Bennett, 39 Texas 303.
It is not, however, necessary to affirm anything upon this point. If we assume that the special law of this State, declaring null efforts to restrict liability in certain cases, did not apply to so much of the printed receipt as stipulated to transport beyond her borders, still, as I suppose, the defendant corporation being a common carrier quoad the through transportation was amenable to the general law upon the subject of the liability of carriers; which, while it allows parties to limit their liability by special *383contract, does not allow such limitations as will destroy the character of the parties as common carriers.
For many good reasons the law is very watchful of the rights of shippers. The general doctrine, as I understand it, is laid down in 2 Greenl. Evid. 260 : “ If the acceptance of the goods was-special, the burden of proof is still on the carrier to show not only that the cause of the loss was within the terms of the-exceptions, but also that there was on his part no negligence or want of due care.” See Singleton v. Hilliard, 1 Strobh. 203; Swindler v. Hilliard & Brooks, 2 Rich. 302; Baker v. Brinson, 9 Rich. 201; Railroad Company v. Lockwood, supra ; Hutchinson on Carriers, § 260. The last named authority, at the section given, says: “ That the weight of authority in this country is in favor of excluding negligence altogether as an element of contract between the carrier and his employer and of holding the former to a rigid accountability for every degree of negligence, without the power by contract or in any other mode to divest himself of it.”
In the case of Swindler v. Hilliard, supra, the defendants had a steamboat running between Charleston and Columbia. They received cotton in Columbia and gave a bill of lading with these words incorporated into it, “Damages of fire and navigation only excepted.” The cotton was burnt on the boat, and it was held, “ That carriers can not by any special contract exempt themselves from liability for losses arising from negligence, and when there is a special acceptance the orais of showing not only that the cause of the loss was within the terms of the exception,, but also that there was no negligence, lies on the carrier.”
In the case from the Supreme Court of the United States, supra, after exhaustive consideration of the whole subject and a careful examination of the authorities, it was' held, “ First, that a common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law; and second, that it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for negligence of himself or his -servants.”
I conclude, even if the printed receipt constituted the only *384•contract between the parties, that the defendant corporation having assumed the business of a common carrier as to the through transportation, and received the property addressed to Baltimore, was bound, notwithstanding the stipulations of exemption, to carry out the main undertaking therein, “to transport to Columbia, and thence by connecting lines to Baltimore.” The law will not allow parties to do the business of ■common carriers and to receive pay as common carriers and at the same time to renounce all responsibility as common carriers. The onus was upon the defendant corporation to show that the property was not destroyed through negligence, which they did not do.
In the language of Judge Withers, in the case of Baker v. Brinson, supra: “Whilst in this State we recognize the doctrine that a carrier may limit by special contract his common law liabilities, there is not the slightest disposition further to modify the rules justly applicable to such transactions. Learned judges in England and America have regretted the recognition of such exceptions. Notwithstanding their apparent rigor, there is a salutary policy in these common law doctrines, and those who are called to administer the law must see to it that they are not wholly evaded.”
I think the judgment below should be affirmed.
Judgment reversed.