(after stating the facts). (1) It is contended that the court erred in directing a verdict against appellant for the alleged $11.88 overcharge, and in refusing to direct a verdict in its favor on the second count of the complaint, claiming damages to' the cattle, during the time of the refusal to deliver them because of appellee’s failure to pay the freight charges demanded.
There was testimony tending to show that the weight of the shipment was more than the 20,000 pounds minimum upon which the freight was charged. The waybill shows weight 23,700, and plaintiff stated he was present when the car was weighed about twenty miles from the starting point, and that the railroad agent announced the weight as 23,700 as shown by the waybill. That he immediately objected, saying it was too much, and thereupon the agent again weighed it and announced that the weight was correct; that he himself did not notice whether it weighed that amount or not.
His own testimony and that of another witness that the shipment weighed piecemeal upon being unloaded less than 20,000 pounds was undisputed. It can not be said, however, that the evidence was undisputed as to the correct weight of the shipment and plaintiff’s statement of the weight as announced by the weigher of the car at the time it was weighed, as well as the statement of the way bill, was evidence tending to prove the correctness of it, and the court erred in directing the verdict. Williams v. St. Louis & S. F. Rd. Co., 103 Ark. 401; Hill v. St. Louis, I. M. & S. Ry. Co., 119 Ark. 589.
(2) The- court erred also in not directing a verdict for the railway company on the second cause of action, suit not having been brought therefor within the time stipulated in the bill of lading for the bringing of suit for damages. It was alleged in the complaint that the railway company arbitrarily and without right refused to deliver possession of the shipment upon its arrival at De Queen, and damages were caused from its retention and lack of care of the cattle, pending the payment of the additional freight demanded. The shipment'was delivered on the 10th day of April, and the suit was not commenced until the 18th day. of July, 1913, more than a year after the cause of action accrued. The amendment to the answer filed on the 27th day of January, 1915, alleged that the suit was not brought within six months after the damage occurred, and also said express stipulation in the bill of lading limiting plaintiff’s right to recovery for damages to a suit brought within six months after the accrual thereof. Such a stipulation in a contract of carriage has been held reasonable and valid by this court, and binding upon the parties thereto. Hafer v. St. Louis S. W. Ry. Co., 101 Ark. 310; Mo. & N. A. Rd. Co. v. Ward, 111 Ark. 102; see, also, M., K. & T. Ry. v. Harriman, 227 U. S. 657.
(3) If the railroad company was entitled to charge the amount of freight demanded, it had the right to hold the shipment until it was paid, and the damage occurring while it was being so held was damages accruing or arising out of the shipment covered by the contract made, and if it demanded freight it was not entitled to receive, and wrongfully held the shipment to compel the payment thereof, it was still liable for such refusal to deliver as a common carrier (Arkansas Southern Ry. Co. v. German National Bank, 77 Ark. 487), and answerable therefor only in accordance with this stipulation in the contract of carriage limiting the time in which suits should be brought for damages arising out of the shipment to six months. after the damage occurred, or the cause of action accrued.
(4) The undisputed testimony shows that the suit was brought long after the six months allowed therefor, and the court erred in not directing a verdict for appellant on this cause of action. It can make no difference that this defense was not alleged in the answer filed, and was put in by amendment after the ease was called for trial. It was set up ¡by permission of the court, which has large discretion in permitting amendments, and no abuse of discretion is shown herein prejudicial to the substantial rights of the complaining party. St. Louis, I. M. & S. Ry. Co. v. Holmes, 88 Ark. 181; sections 6145-6148, Kirby’s Digest; Kempner v. Dooley, 60 Ark. 531.
The fact that it was not set up in the first answer could not constitute a waiver of the rights to insist upon it, and having been properly pleaded and established by the undisputed testimony, it was conclusive of the rights of the parties. For the errors indicated, the judgment is reversed and the cause remanded for a new trial.
Smith, J., 'dissents.