Counsel for appellant, defendant railway company, when arguing this cause, laid down four distinct propositions as embracing and covering all questions raised by them on appeal. It was first urged that, as soon as defendant had properly conveyed the flour in question from its shipping point, Minneapolis, Minnesota, to the easterly terminus- of its line of railway, Gladstone, Michigan, and had there tendered it to the next connecting carrier, the Lehigh Valley Transportation Company, and a reasonable time had elapsed for its reception by the latter, defendant’s liability as a common carrier ceased, and that of the Lehigh Company attached. From that time on the only liability resting on defendant, according to counsel’s views, was that of a warehouseman. The second proposition, dependent upon the soundness of the first, was that, as defendant’s liability at the time of the fire was only that of a warehouseman, the burden of proof was on plaintiff to show that the flour was destroyed through defendant’s negligence. The third was that, by reason of a certain clause in the bill of lading or contract for carriage, of which special mention will be made hereinafter, the defendant had been exempted from any liability for loss or damage to the flour occurring without its fault or neglect. The fourth proposition was also based upon a clause in the bill of lading, it being-claimed that by its terms the defendant carrier was entitled to any *388insurance effected upon the flour by or in favor of the consignee. The flour having been fully insured, and the insurance company, said by defendant’s counsel to be the real plaintiff, having paid the amount of such insurance, it is contended that defendant is entitled to the benefit of such payment.
1. The flour destroyed was part of a much larger quantity delivered to defendant in car-load lots on divers days between October 17 and November i, 1891. As these car-load lots reached Gladstone the flour was removed from the cars to defendant’s warehouse on the dock, there to a-wait the arrival of a vessel belonging to the Lehigh Valley Transportation Company, the next connecting carrier, and’these vessels came quite infrequently and irregularly. The result was that the flour, which was in sacks, was not shipped and did not go forward from Gladstone in the order of its arrival there, and a part of every shipment from Minneapolis was destroyed by the fire. In the bill of lading it was stipulated "that, in case of any loss, detriment, or damage done to or sustained by any of the property herein receipted for during such transportation, whereby any legal liability or responsibility shall or may be incurred, that company alone shall be held answerable therefor in whose actual custody the same may be at the time of the happening of such loss,, detriment, or damage,” and it is on this stipulation, with a certain finding of the trial court, that defendant’s counsel rest their first proposition. The finding was that on the arrival of the flour at Gladstone it was offered by defendant to the Lehigh Valley Transportation Company for shipment under the through traffic arrangements between defendant and the company and other connecting carriers, but that prior to and down to the time of the fire — about 10 days after the last car load reached Gladstone — the transportation company had neglected and refused to receive or transport it; that thereupon defendant deposited the flour in its warehouse, on the dock at which the company’s vessels landed, and thereafter continued ready to make delivery.
The transportation company had no agent or representative at Gladstone, and all freight to be shipped had to be brought to the attention of the officers of the vessels as they came into port; and it is contended by plaintiff’s counsel that, as the evidence conclusively shows that none of the company’s vessels came into port dur*389ing the 10 days prior to the fire, the finding was wholly unsupported by evidence. We need not inquire as to this, for, as we construe the stipulation above quoted, the finding is of no value to defendant, as it was not relieved from, liability or responsibility as a common carrier by reason of the neglect or refusal of one of its associates in the traffic arrangement to receive and forward the property. Under the terms of the bill of lading the shipper of freight was entitled to an uninterrupted, continuous carrier’s duty, at least from Minneapolis to Boston; and the clause in reference to loss, detriment, or damage while in transit cannot be construed as absolving a carrier Avho actually has the custody of the property from his common-law duty, and obligations, because one of his associates in an arrangement for through shipment has unreasonably neglected or refused to receive and forward, for such a construction would permit loss to occur while freight was being transported, as this was, by several carriers, under a through traffic agreement, without a carrier’s duty resting upon them at all' times. The carrier in possession could escape liability because he had tendered the goods to another, and the latter could escape because he had neglected and refused to become an actual custodian. The shipper would have no means of knowing just Avhere the liability of the carrier, as such, attached, or just when it ended. The fact that part of the flour first shipped from Minneapolis was burned illustrates this. The language in question must be construed as an affirmation or guaranty that there shall continually be a carrier in actual custody, and that connecting carriers will receive at the proper time and place. It makes the carrier who has transported the goods to a point where another is to assume custody and control a surety that the latter will receive. As betAveen the two, we need not determine what the relations may be, but as between the carrier who actually retains custody and the shipper the duty and liability of the former continues. He has not become a warehouseman by the refusal and neglect of another carrier. • The real meaning of the language in question is simply that one carrier shall not be held.liable or responsible for the loss or damage done by another. It may be well to remark that the bill of lading considered in the ease of Wehmann v. Minneapolis, St. P. & S. S. M. Ry. Co., 58 Minn. 22, 59 N. W. 548, a controversy growing out of the same fire, differed essentially from that now before us, which *390is for through carriage, and particularly that it contained no language like that just disposed of.
2. Holding, as we do, that the refusal and neglect of the transportation company did not release the defendant from its duties and obligations as a common carrier, renders it unnecessary for us to discuss the counsel’s second proposition.
3. In the bills of lading was a stipulation that the joint carrier, the “West Shore Line and its connections, which received said property, shall not be liable for * * * loss or damage on any article or property whatever by fire or other casualty while in transit, or while in depots or places of transshipment,” etc. By means of this language the earners made a direct attempt to relieve themselves of their common-law duty and liability, and on this stipulation counsel base their third proposition. As the flour was delivered in car-load lots to defendant, it issued to the shipper its memorandum receipts for the same. These receipts were unqualified, and expressed the consideration for the services to be rendered; that is, the rate per 100 pounds for which the flour was to be transported from Minneapolis to various points in Great Britain. Afterwards these receipts were surrendered and canceled, and the bills of lading issued in lieu thereof. As the receipts were unqualified in form, they did not contain the language just quoted, nor that previously quoted, limiting and restricting the carrier’s duty and obligation in case of loss, detriment, or damage or destruction by fire or other casualty. Taking the receipts and the bills of lading together, the presumption arises that there was no consideration whatever for the exemption from the common-law liability so plainly attempted in the bills. In fact, taking them together, it appears that a contract was first made, evidenced by the receipts, whereby the West Shore Line undertook the transportation of the flour unqualifiedly, and without any limitation upon.its liability as a carrier, at a certain rate per 100 pounds, and then, taking up its receipts, issued the bills of lading, whereby it stipulated for transportation at the same rate, but exempted itself from the duty and obligation which had before existed. The rate was not reduced on account of the exemption found in the bills. No further burden was imposed upon the carrier, and no advantage, legal or otherwise, obtained by the consignor. The stipulation needed a consideration to *391make it binding. Wehmann v. Minneapolis, St. P. & S. S. M. Ry. Co., supra. And evidently there was none for the limitations imposed by the bills of lading.
4. In the bills of lading — although not in the receipts, we notice— it was stipulated that in case of loss, detriment, or damage to the flour while in transit the carrier liable for such loss, detriment, or damage should have the full benefit of any insurance which might have been effected on the same. In the policy of insurance issued to the consignor — some time prior to the delivery of the flour to the defendant — for the benefit of all parties concerned, was a condition “that, in case any agreement be made by the insured with any carrier by which such carrier stipulates to have, in case of any loss for which he may be liable, the benefit of this insurance, then, and in that event, the insurers shall be discharged of any liability for such loss hereunder”; so that, by reason of the stipulation in the bills of lading, the insurance company had been discharged and released from any liability on account of this loss. It had a complete defense- to an action brought on the policy to recover for the value of the flour. The situation then was that the defendant had become primarily liable for the amount of the loss, while the insurance company had been released and absolved from liability under its policy. This is conceded by defendant’s counsel, but it is iirged that the objection and defense were waived, and that the subsequent transactions between the owners of the flour and the insurance company amounted to an election on the part of the latter to make unconditional payment, and that, therefore, defendant is entitled to the benefit of the same by reason of the stipulation in the carriage contracts. We do not consider the transaction between the insurance company and the insured as indicating an intention on the part of the former to waive the condition of the policy, or as showing an election on its part to make unconditional payment. Such intent or election was expressly repelled by its acts. It absolutely refused to treat with the owners of the flour, except conditionally, and in a manner which would prevent an imputation to it of any such intent or election. But it is clear that the insurance company, absolved from payment as it was, and under no legal obligation to pay, had the right to exact such terms with respect to the party primarily liable to the insured as it chose as a condition of pay*392ment. Inman v. South Carolina Ry. Co., 129 U. S. 128, 9 Sup. Ct. 249. This is no new proposition of law, and is distinctly recognized in one of the cases relied upon by defendant’s counsel. Lancaster Mills v. Merchants’ Cotton Press Co., 89 Tenn. 1, 14 S. W. 317. So that, if we concede the transaction as amounting to payment, it was upon terms which the insurer had a legal right to impose, that it should have the unqualified absolute right to proceed against the party primarily liable to the insured. It follows that defendant, primarily liable, is not in a situation to complain or to object or to demand that it have the benefit of the payment.
Order affirmed.
Upon a petition for reargument the following opinion was filed April 4, 1895:
PEB CURIAM.On disposing of a petition for a reargument we will assume, without so deciding, that the trial court found, in substance, that the shipping receipts referred to in the opinion were not the final contract between the parties, but that the obligations and liabilities of the appellant were actually embodied in the subsequently issued bills of lading, thus making the case on this point exactly like that of Minneapolis, St. P. & S. S. M. Ry. Co. v. Home Ins. Co., 55 Minn. 236, 56 N. W. 815. But it does not follow that for this reason the petition must be granted. In writing the opinion, the propositions laid down by the counsel for appellant in their brief were followed and discussed, and the case disposed of without reference to the fact that there was a finding of the court below to the effect that appellant, defendant, had not established by a preponderance of proof that the fire was not caused by its negligence. This finding was warranted by the evidence, as the burden of proof was on the appellant to show that it was not negligent. Arthur v. St. Paul & D. R. Co., 38 Minn. 95, 35 N. W. 718; Hull v. Chicago, St. P., M. & O. Ry. Co., 41 Minn. 510, 43 N. W. 391. A reargument covering the claim that the bills of lading were the final contracts could be of no value to the petitioner. The conclusion reached in the original opinion is adhered to.