The opinion of the court, was delivered by
Pollock, J.:This is an action brought to recover from a railway company damages for the killing of nine calves, alleged to have been caused by negligence of the company in making a shipment of a car-load of seventy-two calves from the city of Chanute to the city of Burlington. On the day of the shipment, the calves were driven a distance of eleven or twelve miles *256over muddy roads, arriving in the city of Chanute about four p. m., were loaded in a car which left the city of Chanute on a special freight-train about five p. m., and arrived at the city of Burlington about 8 : 25 p. m. The pens of the defendant company being muddy, the calves were removed therefrom upon the evening of arrival, and were driven some distance that night. The shipment was made under a special live-stock contract, a copy of which was attached to plaintiff’s bill of particulars in justice’s court, where the action was instituted. This contract, among other things, provided :
“The shipper further expressly agrees that, as a condition precedent to his right to recover any damages for any loss or injury to said cattle resulting from carrier’s negligence as aforesaid, including delays, he will give notice in writing to the conductor in charge of the train, or the nearest station- or freight-agent of the carrier on whose line the injuries occur, before said cars leave that carrier’s line, or before the cattle are mingled with other cattle, or removed from pens at destination. In his notice he shall state place and nature of the injuries complained of, to the end that they may be fully and fairly investigated, and said shipper shall, within thirty days after the happening of the injuries complained of, file with some freight- or station-agent of the carrier on whose line the injury occurred his claim therefor, giving the amount. Shipper’s failure to comply with the requirements of this section shall absolutely defeat and bar any cause of action for any injuries resulting to said cattle as aforesaid. . . .No agent of this company has any authority to waive, modify or amend any of the provisions of this contract.” . . .
No notice of damages was given, or claim made, to the conductor in charge of the train at Burlington, or to the station-agent at said place, until the following day, and until the cattle had been removed from the *257pens at point of destination. Plaintiff had judgment in justice’s court and the railway company appealed. Upon a trial in the district court plaintiff had judgment, and the railway company prosecutes this proceeding in error. It was found by the jury that plaintiff overloaded the car; that sixty-five of the calves shipped were as many as could properly be loaded into the car in which they were shipped.
. The principal ground of error claimed is in the following instructions of the court:
“3. The contract entered into between the plaintiff and the defendant for the shipment of the calves is in writing, and is attached to the plaintiff’s bill of particulars in this case, and the conditions of such contract are binding upon the parties, unless for some reason the terms and conditions have been waived, or the performance of the conditions rendered impossible or unnecessary by the action of the parties or one of them.”'
“5. If you find that the said calves in question were killed by the carelessness and negligence of the defendant railway company, and that the plaintiff himself was not guilty of negligence in loading the calves, and that due notice of the claim for damages was given as required by the contract, or that the necessity for giving such notice was waived, then you will find for the plaintiff in the sum the evidence shows he was damaged.”
“9. If, when the car came into Burlington and the plaintiff discovered that the calves were dead, or that he wanted to claim damages for any reason, it was his duty to make a claim in writing for such damages of the conductor of the train or the station-agent. If the station-agent was not at the station when the calves were unloaded, and he could not, for that reason, give notice on that day and before mingling the stock with other cattle, and if he gave such notice, even though the cattle were removed from the yards of the company a short distance at the time of such *258notice, that would be sufficient. . ■ . . If the station-agent was at the station and saw the condition of the stock, and plaintiff at once drove them away, and then, on the next day, the plaintiff made the demand in writing, that would be sufficient as to the written notice, as required by the contract in this-case.”
Live-stock contracts similar in their nature to the. one here involved have received the consideration of this court, and, where fairly entered into by both parties, in the absence of fraud, have been held conclusive and binding on the parties. (Goggin v. K. P. Rly. Co., 12 Kan. 416; Sprague v. Mo. Pac. Rly. Co., 34 id. 347, 8 Pac. 465.) Hence, it must be held that the terms and conditions of this special contract were binding upon these parties and should have been so declared by the court.
This contract also expressly provides that “no agent of this company has any authority to waive, modify or amend the provisions of this contract.” In the face of this express provision in the contract which was binding upon the parties, neither the station-agent in charge of the company’s station at the city of Burlington, nor the conductor in charge of the train, had any authority to waive the notice in writing stipulated in the contract; and the instructions of the court above quoted, based upon a waiver of the conditions of the contract by the station-agent, on account of his knowledge of the death of the calves upon the arrival of the train, or upon any other waiver of the terms and conditions of the contract by the agent of the company, attempted to be shown in this case, were erroneous, for which errors the judgment is reversed.
Doster, O. J., Smith, J., concurring.