*80Opinion op the Court by
Drury, Commissioner—Reversing.
The appellant seeks to reverse a judgment for $877.64, with interest from July 15, 1916. Appellee began this action against appellant as the initial carrier of an interstate shipment. On June 30,1916, J. V. Stimson & Co., a partnership composed of J. V. Stimson and D. C. Stimson, shipped a car of oak lumber from Owensboro, Kentucky, to Buffalo, N. Y., consigned .to their own order, with directions that the Buffalo Veneer Company shouldbe notified of its arrival. The bill of lading for this shipment was attached to a sight draft drawn by the shippers on the Buffalo Veneer Company, and which was forwarded by a bank in Owensboro to one in Buffalo for collection.
The oar arrived in Buffalo on July 13, 1916, and the Buffalo Veneer Company was immediately notified. As the draft was not paid, Messrs. J. V. Stimson and D. C. Stimson went to Buffalo to see about it. They arrived there some time about the latter part of September, and on investigation, found that about one-third of the contents of the car had been removed. The Buffalo Veneer Company offered to execute a note for the portion of the lumber that had been removed, but the Stimsons declined to accept it, and the oar remained on the side track until November 29. On that date the Erie Railroad Company, which was the delivering carrier, moved this car to its warehouse, where it was unloaded on December 1, and counted and stored in the warehouse. Of the 10,608 feet shipped, only 6,570 feet then remained. This lumber was held in storage, subject to the order of J. V. Stimson & Company, until March 20:, 1919, when, after proper advertising, it was sold at public auction for $140.00.
On November 19], 1917, the appellee, D. C. Stimson, alone, began this suit and asked judgment for $998.20, the total ’value of the entire carload of lumber, alleging in his suit that .the defendant had converted it to its. own use. Appellant demurred to the petition. This demurrer was overruled. It reserved exceptions to. the court’s ruling and filed, answer, denying any conversion. It alleged that only 4,038 feet of this lumber was lost, and that that was not taken from the car until more than forty-eight hours after notice had been given of its arrival in Buffalo, and .that when that was taken from the car the carriage of this car had ceased, and that the ap*81pellant’s liability bad ceased, and that this car was then being held by the Erie Railroad as a warehouseman for appellee.
Appellant also filed a counterclaim with its answer, in which it asked judgment for $13.20 for advertising, $121.56 for freight, $115.11 demurrage, and $327.00 storage charges on the lumber, or a total of $576.76.
On May 21, 1923, the appellee was permitted to file an amended petition in which he departed from his original tort action for conversion, and set up a claim under his bill of lading for breach of - contract. Appellant moved to require him to elect. The motion was sustained, and appellee elected to prosecute his action for breach of contract. Appellant answered this amended petition and set out the following provisions of the bill of lading:
“and suits for loss, damage or delay shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed.”
Appellant alleged that this lumber was delivered in Buffalo on July 13, 1916, that the amendment which set up breach of contract was filed May 21, 1923, and pleaded and relied upon limitation. A demurrer was filed to this answer, but it was not passed on and the case was tried without this answer having been denied or controverted.
At the conclusion of all the evidence, appellant asked for peremptory instruction to find for it, which was overruled. The matter was submitted to the jury and resulted in a verdict for $877.64 in favor of appellee.
It is contended as a ground for new trial that the court erred in refusing to give a peremptory instruction for appellant at the conclusion of all the evidence. It is right, because its plea of limitation was uncontroverted by the pleadings and undisputed by the evidence. Peremptory instruction should have been given for another reason. There is no common law liability on the part of the initial carrier for what happens to a shipment while in the hands of the delivering carrier ; it was incumbent on the appellee if he hoped to recover, to bring his case within the terms of the Interstate Commerce Act, which act alone imposes a liability on the initial carrier. It was necessary for the appellee to show a compliance *82■with the requirements of that act in order to claim the benefits thereof. This he wholly failed to do. The last we hear of the bill of lading in the present case it had been forwarded with a draft attached by an Owensboro bank to a bank in Buffalo. Appellee did not prove that he even held the bill of lading, much less show that he was the lawful holder thereof. Prom what appellee testified on the subject it seems that the bill is still in the hands of the Buffalo bank, while the statute expressly provides that the initial carrier shall only be liable to the party who has both the actual possession thereof and the right of property therein. See section 8604a U. S. Statutes.
Peremptory instructions should have been given for still another reason: The Interstate Commerce Act does not make the initial carrier liable for any and every loss or injury to goods, but only for loss, damage, or injury while the goods are in transit. Section 5 of the present bill of lading expressly provided that after 48 hours from the time notice of the arrival of the shipment had been sent, the delivering carrier should hold same as a warehouseman, and not as a carrier. This, has been upheld by the United States Supreme Court. Sou. Pac. R. Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 469; 60 L. Ed. 836.
It has also been repeatedly and uniformly held that an initial carrier is only liable for what the delivering carrier does as a carrier proper, and not for what it does while holding goods as a warehouseman. Adams Seed Co. v. Chicago & Great Western Ry. Co., 181 Iowa 1052; L. R. A. 1918B, 622, 165 N. W. 367. The obligation of an initial carrier ceases when the goods shipped are delivered in good condition at the destination to which they were originally consigned. Barrett v. N. P. Ry. Co., 29 Idaho 139, 157 P. 1016; Parker-Bell Lumber Co. v. G. N. Ry. Co,, 69 Wash. 123, 124 Pac. 389, 41 L. R. A. (N. S.) 1064; Hogan Milling Co. v. Union Pac. R. Co., 91 Kan. 783, 139 Pac. 397.
In order to bring himself within the Interstate Commerce Act and to sustain an action against the initial carrier, the appellee had the burden of proving that the removal of the lumber took place while the delivering carrier held same as a carrier. In other words, appellee had to prove that the removal took place during the 48 hour period. L. So N. R. R. Co. v. John W. O’Neill Co., 204 Ala. 154, 85 Sou. 482; Parker-Bell Lumber Co. v. G. N. Ry. Co., supra. Appellee wholly failed to sustain this *83burden. Appellee admitted in his petition that the lumber was not removed until after the ear reached Buffalo. The proof was uncontradicted that the car was not placed on the Veneer Company’s switch until July 18, 1916, five days after its arrival. The fact that Mr. Stengel, the manager and owner of the Buffalo Veneer Company, offered the latter’s note in payment for the removed lumber, leads almost inevitably'to- the conclusion that the Buffalo Veneer Company removed the lumber after the car was placed on its switch, during which time the Erie Bailroad Company held same as a warehouseman.
Another reason for a new trial is the fact that erroneous instructions were given and proper instructions were refused. Instruction No. 1 that was given was erroneous in this that it permitted the plaintiff to recover for the entire value of the shipment of lumber, whereas, under no state of case was appellant ever liable for any part of this lumber except such as may have been lost in carriage; and instruction No. 4, offered by appellant, submitted that question to the jury, and it should have been given. Appellant offered instruction No. 5 stating that recovery could be had for no part of this lumber that was delivered in Buffalo, and that the shippers permitted to be sold for charges. Such an instruction should have been given.
The court should have given appellant’s, instruction No. 6, directing the jury to find for appellant or to allow it credit for the $576.76 claimed by it for freight, storage, demurrage, and advertising; but this sum should have been credited by $140.09, the money for which the lumber was sold.
The questions presented by appellant’s offered instructions 7 and 8 have already been considered in this opinion.
The judgment is reversed and the cause remanded for a new trial consistent herewith.