ON PETITION TO REHEAR..
The petition to rehear refers us to the following cases: Holcomb v. Canady, 2 Heisk., 612; Frazier v. Tubb, 2 Heisk., 666; Rankin v. Craft, 1 Heisk., 712; Bennett v. Wilkins, 5 Cold., 240; Lowry v. Naff, 4 Cold., 372; McNairy v. Nashville, 2 Baxt., 251; Dean v. Snelling, 2 Heisk., 484; Kirkman v. Snodgrass, 3 Head., 370; also to sections 247 and 260, Gibson’s Suits in Chancery, and to section 6131, Shannon’s Code, which reads as follows:
“The filing of an answer is a waiver of objection to thé jurisdiction of the court, and the cause will not be dismissed, but heard and determined upon its merits, although the court may be of opinion that the matters complained of áre of legal cognizance.”
This section appeared in substance as section 9 of chapter 365 of the Acts of 1851-52, in these words:
*96“Sec. 9. Be it enacted, that, where an answer is made to a bill in equity, it shall be a waiver to any objection to the jurisdiction of the court; and although the matter complained of is, in the opinion of the court, a matter of legal jurisdiction, the chancellor shall decree relief according to the law without dismissing the bill, and, in case of any dispute as to the matter of fact, either party shall be entitled upon application to a trial by jury.”
Section 6131, as it appears in Shannon’s Code, was section 4321, Code 1858.
The reason, no doubt, underlying the holding of this court in Holcomb v. Canady, 2 Heisk., 612, cited supra, and other cases of that line, to the effect that the filing of an answer was a waiver of objection to the jurisdiction of the chancery court over the persons, of the parties litigant, as well as over the subject-matter of the suit, was that by the passage of the ninth section of the act of 1851, and section 4321 of the Code of 1858', the legislature had expressly conferred jurisdiction upon the chancery court to try matters of legal cognizance where objection to its jurisdiction so to do had been waived by the defendant by filing an answer to the bill; and manifestly the reason underlying those decisions was sound, and, if our legislation stood to-day as it did at the time of the rendition of those decisions, we would have no difficulty in following those cases in the disposition of the question in this case. But it is to be observed that all of the cases above cited were decided before the passage of chapter 97 of the Acts of *971877. This act wrought a very material change in, and a distinct and considerable enlargement of, the jurisdiction of the chancery court. Under the act of 1877, the party complaining may as of right invoke the jurisdiction of the chancery court in all civil causes of action within the meaning of that act theretofore triable in the circuit court, with the exceptions noted in our original opinion in this case; and by the act of 1877, the right is taken away from the defendant to object to the jurisdiction of the chancery court because the subject-matter is of legal cognizance, if it be true that the complaint is a “cause” within the meaning of the act, and not upon its facts falling within one of the three exceptions noted in our original opinion in this case.
The act of 1877 is a distinct repeal by implication of the jurisdiction of the chancery court conferred by section 9 of the act of 1851-52, and by section 4321 of the Code of 1858, and now carried as section. 6131, Shannon’s Code, to pass upon the merits of all causes where objection to its jurisdiction is waived by answer, “although the court may be of opinion that the matters complained of are of legal cognizance,” because that jurisdiction cannot stand together with the exceptions noted in the act of 1877. This act clearly means that the chancery court shal] not have jurisdiction to render any decree on the merits of a civil cause of action within any one of the exceptions noted in it. The former legislation is'inconsistent with this meaning of the act of 1877, and was impliedly repealed by the latter act.
*98Bnt we are not to be understood as bolding that anything in the act of 1877, either expressly o.r by implication,, repealed section 4321, Code of 1858, now section 6131, Shannon’s Code, in so far as that section' now has the effect of providing that the filing of an answer is a waiver of objection to the jurisdiction of the chancery court over the person of the defendant or the “local status” of the “litigation,” or in a case of equitable cognizance, such as Falls v. Building & Loan Association, 105 Tenn., 24, 58 S. W., 325, or we may safely add in any case where the application of section 6131, Shannon’s Code, would not operate to assert jurisdiction of the chancery court to pass on the merits of a cause excepted from its jurisdiction by chapter 97 of the Acts of 1877.
The view of our legislation herein set out explains an apparent conflict between the line of authorities relied on by petitioner, and cited supra, and what was said by this court through Mr. Justice Wilkes in Baker v. Mitchell, 105 Tenn., 610-612, 59 S. W., 137, 138, where the precise question was whether the defendant, who raised the question of the jurisdiction of the court by filing a demurrer but also at the same time filed an answer, had by the filing of the answer waived the right to insist on his demurrer. The court said:
“We are of opinion that the question as to jurisdiction in this ease is one based upon the subject-matter of the controversy, and not the person of the defendant or the local status of the litigation, and that it could be made at any time” (citing Lowe v. Morris, 4 Sneed, *9969; Merchant v. Preston, 1 Lea, 280; Starnes v. Newsum, 1 Tenn. Ch., 245).
And, continuing, the court said: “Indeed, the want of jurisdiction of the subject-matter could not be waived, nor could it be conferred by consent, appearance, plea, or answer, if it does not exist by law. See eases collated Webb & Meigs’ Digest, p. 2058, sec. 11.”
The subject-matter of the litigation in that case was the right to the office of mayor of the town of G-reen-' ville, Tenn. The action presented was an election contest, and the claim that jurisdiction existed in the chancery court to try the case was based on chapter 97, Acts of 1877; but it was held that the -jurisdiction did not exist, for the reason that “a proceeding of this character” is not a “cause” within the meaning of that act. We cannot doubt but that the court in the consideration of that case noted the exact distinction which we have pointed out in this opinion between the legislation effected by the act of 1877 and that on which the cases rest upon which petitioner relies.
What we have said is our response to the insistence made by petitioner that the answer of defendant in this case amounted to a waiver of its objection to the jurisdiction of the chancery court over the subject-matter of this suit.
We hold that under the act of 1877 the filing of the answer was no bar to the right of the defendant in this case at the conclusion of complainant’s evidence to move the court to dismiss the suit for want of jurisdiction. Even the express waiver or consent of defendant. *100would not have conferred jurisdiction on the court over the subject-matter of this suit.
Jurisdiction has been well defined to be a power constitutionally conferred upon a judge or magistrate to take cognizance of and determine causes according to law and to carry his sentence into execution. Cyc., vol. 11, p. 660.
That power, under the facts of this case, the chancery court did not have. The cause of action was for damages unliquidated by the contract of the parties, and unliquidated by anything they said or did after the contract of bailment was made. No rule of law will operate to liquidate damages, unless- there be words or acts of the parties to the contract in evidence from which it may fairly be implied that the amount, or a basis for computation of the amount, of the damages was agreed upon by the parties. The law does not sua sponte make contracts for parties, nor liquidate damages, where the parties by their acts and words have left the question open.
Although a contract of bailment much different was averred in the bill, when complainant’s proof was in, it was clear that the actual contract entered into by the parties was that, for the price of thirty cents per case per season, the bailee received the eggs and issued a warehouse receipt for each case, stating in substance that the property was stored at the owner’s risk, that its condition and quality were unknown to the bailee, and that it would be returned to the owner at his request upon payment of storage and other charges.
*101Under sneh a contract, the warehouse company was á mere bailee for hire, held only to exercise ordinary care, or “the care and diligence which good and capable warehousemen, experienced and faithful in the particular department are accustomed to exercise when in the discharge of their duties.” Lancaster Mills v. Merchants’ Compress Co., 89 Tenn., 1-33, 14 S. W., 317, 324 (24 Am. St. Rep., 586).
Now, when the written receipt upon which each case of eggs was stored shows that the “condition and quality of the eggs’-’ was a fact unknown to the warehouseman, how can the law by implication raise a contract binding it to return to the bailor at his request eggs of good and merchantable quality, and, in the event of his failure so to do, that he will pay to the bailor the difference between the market value of storage eggs of good and merchantable quality and the market value of the eggs at the time of .redelivery? The law implies no such contract. It makes no unjust implication, none which will aid one party in the perpetration of fraud upon the other. If the condition and quality of the eggs had been known to the bailee at the time of storage, the law would raise the implication above stated, but not otherwise.
So it is idle in the face of these facts to insist that any rule of law liquidated the damages under the facts of this case.
It is equally clear that this suit was based upon an injury to property within the meaning of the act of 1877. It is said the injury arose out of a breach of the *102contract alleged by tbe bill; bnt tbis, if true, does not destroy or minimize tbe existence, of tbe fact that the basis of tbe suit is an alleged injury to property, and that tbe damages sought flow from sucb injury.
It is not witbin our rights to bend tbe law to meet bard cases. It is our duty to administer it as written. The petition to rehear presents no new matter, except tbe one fully discussed in tbe first part of tbis opinion.
But the decree of tbis court dismissing tbis suit will enjoin tbe Memphis Cold Storage Warehouse Company from setting up or relying on tbe statute of limitations as a defense to. sucb suit upon tbe merits of tbis cause in tbe circuit court of Shelby county, Tenn., as Swift & Co. may commence witbin one year from tbe date of tbe above decree (Smith v. McNeal, 109 U. S., 426, 3 Sup. Ct., 319, 27 L. Ed., 986 ; Cole v. Nashville, 5 Cold., 639; Railroad Co. v. Pillow 9 Heisk., 248; Love v. White, 4 Hayw., 210; Chilton v. Scruggs, 5 Lea, 313; Hughes v. Brown, 88 Tenn., 578, 13 S. W., 286, 8 L. R. A. 480; Code 1858, see. 2755; Shannon’s Code, sec. 4446); it being our opinion that, under tbe provisions of tbe above statute and the facts of tbis case, tbe complainant is entitled to tbe injunction above awarded.
. Tbe petition to rehear will be dismissed, and decree entered dismissing this suit as announced in our original opinion.