(dissenting). I am unable to concur with the above opinion. Counsel for appellant contends that “plaintiff has, by his own offer in evidence, established the contract under which the plaintiff and defendant dealt in respect to the transportation of the grain, and has thereby rendered incompetent and immaterial the negotiations by *493him with the soliciting freight .agent, Cole, because these negotiations were all prior to the making of these bills of lading.” lie also contends that the bills of lading exempt the defendant railway company from .liability for the grain until actually loaded into its cars.
Counsel, however, is somewhat inconsistent in his positions. lie insists that the terms of the bills of lading control, and that the testimony in regard to all prior negotiations to explain the same is in■competent and irrelevant, yet, at the same time, his whole defense is based upon an attempt to vary those very terms. The bills of lading .specifically receipt for the grain, not at Kenmare, the point of the beginning of the rails of the railway company, but at the elevator points •of Boscurvis, Paisley, and Newport. The contracts for shipment, indeed, which are contained in all of the bills of lading, and the only promises therein contained, are made by the defendant railway company, and by the defendant railway company alone. They are signed by the agent of the railway company, no attempt whatever being made to show that this person was agent for any-one else but the railway •company. The bills of lading upon their face show conclusively a contract between the railway company and the plaintiff, Knapp, and between these parties alone, and show conclusively an agreement on the ■part of that railway company to cany the goods from the elevator points ■to the points of destination. Defendant, however, seeks to show that these receipts which receipted for the grain, not at Kenmare, but at Boscurvis, Newport, and Paisley, and that its contracts to convey the .grain, not from Kenmare, but from the said elevator points, were merely given as a matter of accommodation, and although his case is tried on this very theory, and this theory alone, he objects to the admission of the testimony of the witness Knapp, which tends to show the prior negotiations and to show that the receipts, in fact, evidenced the real contract, which was for the transportation of the goods from the elevator points, and not from Kenmare.
Either one proposition or the other must be true, and it is clear that the bills of lading alone control, or else that there is an ambiguity in them which can be explained by parol evidence, and in either event the record and the evidence are in my opinion such that the matter was properly submitted to the jury, and their verdict is controlling. Even if we take the position that the bills of lading are controlling and must *494be considered alone, there can be no doubt of a contract for transportation by the railway company from the elevator points, and that, under such contract, the railway company is liable for the loss of the grain anywhere between such elevator points and the points of destination. There can be no question, indeed, that the railway company was the-initial carrier. “The initial carrier,” the court said, in the case of Savannah, F. & W. R. Co. v. Commercial Guano Co. 103 Ga. 590, 30 S. E. 555, “is not necessarily the one that first receives the goods from the shipper but it is the one that first receives the g-oods with an undertaking to transport and safely deliver them to the consignee at the place-of destination.” See also Noyes v. Rutland & B. R. Co. 27 Vt. 110;. Swift v. Pacific Mail S. S. Co. 106 N. Y. 206, 12 N. E. 583; Evansville & C. R. Co. v. Androscoggin Mills, 22 Wall. 594, 22 L. ed. 724;. note to 31 L.R.A.(N.S.) page 2.
That the second of two connecting carriers may become the initial carrier by contract, and agree to be liable for the transportation from the point of origin of the freight, though not upon its own 'line, cannot now be controverted. We have discussed this question in the priolease of Knapp v. Minneapolis, St. P. & S. Ste: M. R. Co. 33 N. D. 291, 156 N. W. 1019, and all that is necessary here is to refer to that case and to the cases of Savannah, E. & W. R. Co. v. Commercial Guano Co. supra; Noyes v. Rutland & B. R. Co. 27 Vt. 110; Swift v. Pacific-Mail S. S. Co. 106 N. Y. 206, 12 N. E. 583; Evansville & C. R. Co. v. Androscoggin Mills, 22 Wall. 594, 22 L. ed. 724, and to the so-called Carmack amendment. See also Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. 123, 22 L. ed. 827.
The bills of lading, as I have before stated, expressly receipted for the goods at the elevator points. The promises in the bills of lading were made by the railway company, and by the railway company alone;, they were made by its agent, and by its agent alone, and it is well established that when a bill of lading receipts for goods as having been received at a certain jooint and agrees to carry such goods to another point, such bill of lading contains not merely a receipt for the goods, but a promise to carry or convey the goods between the points mentioned. I am well aware of the numerous authorities which hold that the receipt part of a bill of lading may be overcome by parol evidence,, and that it may be shown that the goods were never received at all or *495were not of the quantity receipted for. I have yet to find a single authority, however, which looks upon this promise to convey as a part of the receipt, and provided that the goods were received at tire points named in the receipt, the authorities are overwhelming that the contract is conclusive.
If, then, the bills of lading control, the only question is the construction of the clauses thereof which provide that: “Section 2. In issuing this bill of lading this company agrees to transport only over its own line, and except as otherwise provided by law acts only as agent with respect to the portion of the route beyond its own line. No carrier shall be liable for loss, damage, or injury not occurring on its own road or its portion of the through route, nor after said property has been delivered to the next carrier, except as such liability is or may be imposed by law, but nothing contained in this bill of lading shall be deemed to exempt the initial carrier from any such liability so imposed. Section 3. No carrier is bound to transport said property by any particular train or vessel or in tilne for any particular market or otherwise-than with reasonable despatch, unless by specific agreement indorsed hereon. Every carrier shall have the right in case of physical necessity to forward said property by any railroad or route between the point of shipment and the point of destination; but if such diversion shall be from a rail to a water route the liability of the carrier shall be the same as though the entire carriage were by rail. Section 5 . . . Property destined to or taken from a station, wharf, or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves, or landings shall be at owner’s risk until the cars are attached to and after they are detached from trains.”
I do not see how these provisions are applicable in the case before us. The receipt was given for the wheat, not at Kenmare, but at the elevator points. Under that receipt the carrier became the initial carrier. It-is not sought to be held liable for the loss of goods beyond the points of destination or upon the line of a subsequent carrier, but upon a line on which it had itself agreed to be liable. It had charged a rate of 22 cents, which was the rate not from Kenmare, but from the elevator-points. It had receipted and taken the grain and the grain was loaded *496at the elevator points. The loss mentioned occurred while the grain was being unloaded at the wharf at Kenmare, and it had been loaded “into the cars or vessels” of the defendants at the elevator points and from that point the railway company assumed responsibility for it. ‘Section 5 of the provisions of the bills of lading merely applies where grain is taken in the first instance from a private wharf or landing or from the wharf or landing of a connecting carrier over whose line the said carrier has not assumed any responsibility. It cannot apply where the defendant is the initial carrier and where the loss occurs after the goods have been received by it as such initial carrier. See St. Louis Southwestern R. Co. v. Kilberry, 83 Ark. 87, 102 S. W. 894.
If on the other hand the bills of lading were ambiguous (and the defendant itself seeks to vary the terms thereof by showing -that the receipts for the goods at the elevator points were merely made as a matter of accommodation), then parol evidence was admissible to explain the real contract between the parties. Not only this but § 6213 of the Compiled Laws of 1913 provides that “a carrier must subscribe and deliver to the consignor . . . any reasonable number of bills of lading of the same tenor, expressing truly the original contract for ■carriage.” If the parol evidence was .admissible and competent, and I think it was, then there can be no question as to the liability of the ■defendant, or at any rate there was evidence to go to the jury showing such liability.
According to the testimony of the plaintiff (and this the jury was justified in taking at its full weight), the agent Cole held himself out ■as a general agent of the railway company, and there is certainly evidence outside of his own statements that his actions as such were ratified by the company. The plaintiff, Knapp, testified explicitly that he had been induced to lease the elevators by the promises of Cole that the defendant railway company would care for him and -would get his grain out, and that Cole said that “the bills of lading will read from Boscurvis, Baisley, and Newport, and that I (Knapp) will get my receipts at Kenmare.” There is evidence that there were no agents of •either the navigation company or the railway company at the elevator points, and that this custom had been followed. The bills of lading therefore in the case at bar were issued in conformity to this agreement. In other -words both by the bills of lading and by the prior parol agree*497ment, the railway company undertook to carry the wheat from the elevator points to the Minnesota terminals, and the receipts or bills of lading were given at Kenmare rather than at the elevator points merely because there were no agents at those elevator points.
The rate published (the 22-eent rate from the elevator points and the 17-cent rate from Kenmare) was published by the railway company and the railway company alone. The name of the navigation company did not appear therein or thereon except in one part where the tariff sheet states that the rate given will include “the cost of elevation at Smith’s landing.” The bills of lading were given by the railway company, and not by the navigation company, and although in some of them and at the top of the name of the railway company was written that of the navigation company, the promise to carry was the promise of the railway company alone, and read “Received subject to the classification and tariffs in effect on the date of the receipt by the carriers of the property described in the original bill of lading at Boscurvis, Sask. (Newport or Paisley, as the case might be) from D. C. Knapp the property described - . . which the Minneapolis, St. Paul and Sault Ste. Marie Railway Company agrees to carry to its usual place of delivery at said destination.”
The defendant and appellant in short claims that the bills of lading control, and the plaintiff is absolutely bound thereby. He seeks, however, to vary their terms and to show that the promise to carry from the elevator points did not mean what it said, and yet objects to oral proof of what the promise was. That proof shows that the bills of lading were in conformity to the oral agreement, and which was to carry from the elevator points, and not from Kenmare.
It may be that a station agent has no implied authority to contract a liability beyond the line of the railway. The bills of lading, however, in the case at bar were issued under authority of the general agent and in the course of business which had been ratified by the company.