On Rehearing.
Appellant’s counsel has filed a most able motion for rehearing, but we s^e no reason to recede from the views heretofore expressed. In the consideration of the motion we have been greatly assisted by an opposing argument presented by counsel for the appellees. In the preparation of this opinion upon rehearing we, in great measure, use the opposing argument of appellees’ counsel.
In its motion appellant calls attention to the failure in our opinion to directly pass upon the issue presented under the first assignment of error to the effect that this case should be controlled by the Carmack Amendment to the Hepburn Act of the federal Congress enacted June 29, 1906. This law was in effect when the shipment in question was made. In substance that act provides that any common carrier receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it, or by any common carrier to which such property may be delivered, or over whose lines such property may pass. It is insisted that appellant was the lawful holder of the bill of lading issued in this case at the time the cattle were delivered to the J. P. Peters Commission Company, and therefore the case comes within the provisions of the Carmack. Amendment. The question in this case, as the suit is brought, is not a question of who is the proper party plaintiff, but a question of whether or not the carrier caused any loss: As we view it, the bank caused the loss by directing the carrier (through its agent, Peters) to deliver the cattle'to the Peters Coni-*399mission Company. Plaintiff’s contention in effect is that, in saying “shall be liable to tbe lawful bolder,” tbe Carmack Amendment (U. S. Comp. St. §§ 8604a, 8604aa) by implication prevents a delivery to any one escept tbe lawful bolder of tbe bill of lading, and tbe question now to be determined is whether this is rigidly to be implied .front the Car-mack Amendment. As touching upon this question, we quote from tbe case of Cincinnati Railway v. Rankin, 241 U. S. 327, 36 Sup. Ct. 558, 60 L. Ed. 1022, L. R. A. 1917A, 265, where, in a shipment case, Justice Mc-Reynolds said:
“Rights and liabilities of the parties depend upon the acts of Congress, the bill of lading, and common-law rules as * * * applied in federal tribunals.”
Referring to tbe holdings in some of tbe decisions cited by appellant:
Ry. Co. v. Ward, 244 U. S. 386, 37 Sup. Ct. 617, 61 L. Ed. 1213, simply bolds that in an interstate shipment tbe contract with tbe initial carrier takes precedence and controls as against the contract of tbe connecting carriers.
T. & P. v. Leatherwood, 250 U. S. 481, 39 Sup. Ct. 517, 63 L. Ed. 1096, simply bolds that tbe first contract embodies tbe contract for transportation, and its terms in respect to conditions of liability cannot be varied by succeeding contracts.
Adams v. Croninger, 226 U. S. 507, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, holds that tbe liability to the lawful holder is not a liability of an insurer, but only tbe common-law liability; and, further, that a limitation fairly based on tariff and schedules is valid.
Atchison v. Robinson, 233 U. S. 173, 34 Sup. Ct. 556, 58 L. Ed. 901, merely bolds than an oral contract cannot be allowed, when in conflict with tbe tariff and schedules.
As bearing upon this question, see Ry. Co. v. Vasbinder, 172 S. W. 763, where it was held that tbe Carmack Amendment does not render invalid all oral contracts of shipment, but only those which are in conflict with tbe schedules and rates published by the Interstate Commerce Commission. In Railway Co. v. Meyer, 155 S. W. 312, it was held that the term “lawful holder” embraced the owner of the property transported or any one beneficially entitled. In both of these last two cited cases writs of error were refused by the Supreme Court of Texas.
It has also been held that the consignor, though not the lawful holder of the bill of lading, can bring an action for loss. Aultman v. Coast Lines (Fla.) 71 South. 284; Bowden v. Railway Co., 5 Boyce (Del.) 146, 91 Atl. 209.
Those cases show that the implication from the Carmack Amendment for which appellant contends, namely, that delivery could only be made upon surrender of the bill of lading, is not a rigid implication, and, while there may be cases in which that implication would be applied, still, the general principles of the common law as said by the Supreme Court obtain, and the implicated rule is only applied subject to the relative rights, liabilities, and duties of the parties as governed by the facts and the form of the action brought.
The Coovert Case, 80 Wash. 87, 141 Pac. 324, upon which appellant relies, is a perfect illustration of this. In that case, delivery was made to the consignee, after the railroad had been notified by the consignor that the bill of lading had been returned to it, and after it had surrendered the bill of lading to the railroad and demanded the goods— clearly, of course, a wrongful delivery.
The Nebraska Meal Mills v. St. Louis & Southwestern Railway, reported in 64 Ark. 169, 41 S. W. 810, 38 L. R. A. 358, 62 Am. St. Rep. 183, is almost identical with the case at bar, and is illustrative of the contention which appellees make, namely, that appellant cannot, by its own' wrongful action, induce the 'carriers to make a given delivery, and then, standing upon a rigid technical rule of law, ask the court to overlook its wrong actions, and to award damages against the carrier for the very delivery which it directed.
In the Nebraska Meal Mills Case, above cited, that corporation delivered to the Missouri & Pacific a carload of meal for shipment to E. D. Russell in Arkansas. A bill of lading was issued in which it was stipulated that the meal was to be transported to destination and there delivered to the consignee, Russell. The appellant, without notice to the railroad, drew a sight draft on Russell for the price of the meal, attached it to the bill of lading, and forwarded it to a bank for collection. The bank presented the draft for payment, but Russell was insolvent and failed to pay. The connecting carrier, having no notice that a draft had been drawn on Russell, or that Russell was insolvent, or that the ponsignor desired to retain control of the meal until the draft was paid, delivered the meal without requiring the production of the bill of lading.
In that particular case, the court quotes the bill of lading as having been “straight,” but to our minds it was no more a straight bill of lading than the one in this case is. That is to say, an order bill of lading, in the common acceptance of the term, would read: “City National Bank, consignor, to order of City Bank, consignee, notify Peters Commission Company.”
The instant bill of lading named the First National Bank of Kansas City as consignee, and, as the jury found the facts, the bill of lading must be considered as reading: “Consignee, First National Bank, care J. P. Peters Commission Company.”
In Arkansas there was a statute providing that any and all persons, to whom the bills of *400lading 'may be transferred, shall be deemed and held to be tbe owners of the goods, and no property specified in such bills of lading shall be delivered except on surrender and cancellation of the bills of lading.
The court said:
• “If, as counsel for appellant contends, the bill of lading represented the meal, and the ownership of the meal was in appellant so long as it held the bill of lading, still, as such owner, it unconditionally directed the carrier to deliver the meal to Russell. It would seem unreasonable to believe that the Legislature intended to impose a liability upon the carrier in favor of the consignor for obeying and’ carrying out the directions of such consignor in regard to the delivery of the-consigned property, for such intention would be contrary to common principles of reason and justice.”
It bias been repeatedly held that, although the shipper’s agent had really no authority to limit the value of a shipment, yet, if by his principal he was placed in charge of the shipment, the carrier could rely upon his instructions and the principal would be bound thereby. American Brake Shoe Co. v. Marquette Railway (D. C.) 223 Fed. 1018; G. N. Railway v. O’Connor, 232 U. S. 508, 34 Sup. Ct. 380, 58 L. Ed. 703.
As to the purpose of the Carmack Amendment: It has also been held that the consignor, though not the lawful holder of the bill of lading, can bring an action for loss. Aultman v. Coast Lines (Fla.) 71 South. 284; Bowden v. Railway Co., 5 Boyce (Del.) 146, 91 Atl. 209. But aside from these matters the rule for which appellant contends has no application to this case. This for the reason that appellant is bound by its pleadings. It could only recover as it has pleaded and upon the cause of action asserted by it.
Appellant alleged a breach of an agreement to deliver to the First National Bank of Kansas City, the consignee named in the bill of lading.
The jury has found that the delivery could lawfully be made care Peters Commission Company, so that appellant’s cause of action, as pleaded by it, has failed; the delivery to the commission company being in view of the jury’s finding a delivery to the First National Bank.
Appellant now relies upon a new cause of action for delivery without surrender of the bill of lading.
The plaintiff alleged that defendants agreed in writing to carry from El Paso, Tex., to Kansas City, and there to deliver to First National Bank of Kansas City; that the defendant did not carry and deliver said cattle, but so negligently acted as that the cattle were not delivered to said consignee.
As said in the original opinion, the cause of action is predicated upon the failure of the carrier to deliver to the consignee, or to the plaintiff, or to any other person authorized to receive the same. The plaintiff can only I recover in accordance with his pleadings. Many Texas cases have announced this well-settled jule.
Galm v. Wabash Railroad Co., 113 Mo. App. 591, 87 S. W. 1015, which holds that if the pleader alleges specific actions of negligence he must prove the acts alleged, else he will fail in his action.
Chitty v. St. Louis Iron Mountain & Southern Railway (Mo.) 49 S. W. 870. In this case the petition alleged that the plaintiff was a passenger in the caboose of the train and was injured by being thrown out of the door. It was held that he could not recover by showing that he had reasonable cause to apprehend a collision and jumped out of the door.
Norton v. G., H. & S. A. Railway Co., 108 S. W. 1045. The character of an action is fixed by the allegations in the pleadings and not by facts subsequently disclosed by the evidénee; where plaintiff seeks to recover on the ground that Ihe rails had not been properly spiked to the ties, he cannot recover on other grounds.
G., C. & S. F. Railway v. McKinnell, 173 S. W. 937. The object of pleading is to apprise the court and the opposite party of the facts upon which the pleader relies as constituting his cause of action; and neither party can be held legally bound to answer grounds not averred in the pleading.
To the same effect, Lemon v. Hanley, 28 Tex. 221.
We think it is clear, therefore, that appellant’s reliance upon the rule that the bill of lading, as an order bill, carries the title to the goods, comes too late. The action as brought by it was not founded upon delivery without surrender of the bill of lading, but was a straight suit, to recover against us for failure to deliver to the First National Bank.
In other words, it seems that appellant is seeking to recover upon an issue not tendered by its pleadings.
The case of Lee v. Boutwell, in the 44th Tex. page 151, does not sustain appellant’s proposition. In that case, plaintiff and defendant entered into a verbal contract. The plaintiff was to take charge of a stock of horses for the defendant, for which he was to receive every fourth colt. He alleged that the defendant took the horses out of his possession and prevented his performance of the contract. He did not sue for the profits he might have made, but sued for the expense that he had been put to, in preparing to carry out the contract. As he alleged it, he proved it, and it was only in the prayer that he had not sufficiently pleaded, and this the court held the prayer for general relief corrected.
This brings us to the question of whether J. A. Peters was the agent of the City Bank, to handle and ship these cattle.' Reference' is made in this connection to the cases cited *401above — American Brake Shoe Co. v. Marquette Railway (D. C.) 223 Fed. 1018; G. N. Railway Co. v. O’Connor, 232 U. S. 508, 34 Sup. Ct. 380, 58 L. Ed. 703.
If Peters was the agent of the City National Bank, then appellant’s theory fails, and we have simply an instance where the City National Bank, desiring to ship cattle to Kansas City, first consigned them to the Kansas City Bank, but finding that it might in that way lose a day’s market — as it did in one instance — it directed the carrier, thereafter, to so ship them as that they should be delivered “care Peters Commission Company,” intending thereby that the cattle should be so billed as that they would be delivered to the Peters Commission Company.
Having done this and having made a loss through the failure of the commission company to account for this shipment, the City Bank now seeks to shift that loss to the carrier, by taking the position that the Car-mack Amendment and authorities in general make the carrier liable to the holder of the bill of lading, and take the position that, the City Bank being the holder, it can recover of the carrier, notwithstanding the fact that it (through its agent) directed the carrier to deliver the cattle to the Peters Commission Company. Having obtained the true Basis of the relative rights and liabilities of the parties, let us first inquire:
Was J. A. Peters the agent of the City Bank to ship the cattle?
The outstanding feature of this question is contained in the testimony of J. F. Williams, vice president of the City Bank, as follows:
“I did not personally go down to the railroad office to ship them. No one from the bank personally went and looked after that.
“There had been quite a number of these shipments prior to this particular one, and Mr. Peters had looked after all, or nearly all, of them. I knew that he had been looking after the shipments. We knew that these eattlé were being handled (at Kansas City) by the J. P. Peters Commission Company. We were allowing Mr. J. A. Peters to bill them out for .us and look after getting them up there.”
Without reference, at this point, to the further'testimony in the case of Jr A. Peters and the defendants’ agents, we have now the facts: (a) That the bank knew that somebody had to go to the railroad office and make the shipping arrangements; (b) that the bank allowed J. A. Peters to do this and that it knew he was doing it; (c) that nobody else from the bank went to the railroad office or had anything to do with making the actual billing arrangements.
Thus Peters became the agent of the bank, with plenary power to ship the cattle as and to whom he saw fit. No secret limitations of his authority, if such there were, would affect or bind the carrier. He was the only man the carrier knew, the only man the carrier saw; his directions were to deliver the cattle to the Peters Commission Company, and this the carrier did, nór can the City Bank take advantage of any form of contract, in any event, because the delivery to Peters Commission Company was caused (even if contrary to its own wishes) by the action of the City Bank in vesting J. A. Peters with plenary power to handle and ship the cattle as he saw fit.
• In this connection it is to be remembered that there had been other shipments that had been handled as this one was, and had been delivered to Peters Commission Company, and that the jury, in answer to question 5, found that in these prior shipments the cattle had been delivered to Peters Commission Company prior to the payment of the drafts, and that the City Bank knew of this and ratified and acquiesced therein, and that in answer to question 4, requested by plaintiff, the jury found that had the bill of lading actually consigned the cattle to First National Bank, care Peters Commission Company, the City Bank would not havp notified the defendant not to deliver until the draft was paid.
We come now to the evidence of mutual mistake, a great deal of which is also relevant as showing what Peters’ instructions to the carrier and authority from the City Bank were.
In analyzing this testimony it must be borne in mind that we are simply to determine, as an appellate court, whether there is evidence to sustain the findings of the jury in answer to questions Nos. I and 2.
Stated succinctly, their findings are: (a) That it was mutually agreed between J. A. Peters (for the bank) and the agent of the receiving carrier that the cattle should be consigned by the bill of lading “In care Peters Commission Company.” (b) That when the bill of lading was issued, by the mutual mistake of J. A. Peters and the agent of the receiving carrier, it omitted to state “care of Peters Commission Company.”
The first material inquiry is: Why did the City Bank, through J. A. Peters, desire the cattle shipped so as to be delivered to the Peters Commission Company? The answer is:
(a) There had been no trouble or failure to pay drafts by the Peters Commission Company, and the City Bank had acquired confidence in them.
(b) There had been trouble in reference to the market — one shipment had been held for the Kansas City Bank to open in the morning, and the day’s market had been lost.
It might well be that the City Bank (as found in plaintiff’s question No. 4 to jury) preferred to ship them “so as to be delivered to Peters Commission Company.”
The evidence of the lost market shipment *402will be found on page 31 of Statement of Facts, and reference is made to the exact language of J. A. Peters:
“I know tlie reason why the cattle going to Kansas City were ‘consigned’ to J. A. Peters Commission Company in this particular case.”
Note the language, “were consigned to”— out of the witness’ own mouth we learn what he believed the transaction was — a consignment to Peters Commission Company. This is what he wanted and what’he intended ; it was what the City Bank, through him, wanted and what it intended.
Appellant says this shows that Peters “waybilled” them to Peters Commission Company, but is there not at least an issue of fact here as to whether Peters did not intend to so consign them, and by mistake omitted to do so?
Again, in his testimony Peters says:
“It appears in those waybills that the cattle were consigned * * * care of J. P. Peters Commission Company. I billed them that way. As to whether I directed the clerk of the railroad that issued the bill of lading to bill them that way, that is the billing I gave the clerk of the railroad that issued the bill of lading.”
Is this testimony all one-sided? Is it not clearly susceptible of the construction that the, omission from the bill of lading of the words “care Peters Commission Company” was a mutual mistake?
Appellant says that the witness referred to the waybills, but does it not all show that the witness intended to ship the cattle “care Peters Commission Company”?
Take his statement, “The first shipments were not ‘consigned’ * * * care Peters Commission Company like this shipment was.”
What does the word “consigned” mean? It does not apply to a waybill. It is applicable-only to a bill of lading.
The material questions are: (a) Did J. A. Peters intend to execute such documents as to make the cattle deliverable to Peters Commission Company? Tbe answer is, indisputably, “Xes.” (b) Did Peters omit the words “care Peters Commission Company” from the bill of lading by mistake? Clearly the facts, at least, show that there is evidence to support the jury’s findings that he did.
On the .carrier’s side:
Wallwork testified:
“Waybills should be made out in conformity with the bills of lading, unless sometimes the contracts are made, and then they come around and ask you to add something on them, and the billing clerk is liable to forget to put it on the order. * * * It is an oversight of the railroad if they forget to put that on the contract. * * * In this bill of lading the consignor is City National Bank. Our waybills make them consignee care Peters Commission Company. That was not on the bill of lading that was an oversight there.”
Jarvis, billing clerk," testified:
“J. A. Peters issued billing instructions on those cattle. His instructions were the cattle were billed from City National Bank to Eirst National of Kansas City, care J. P. Peters Commission Company.”
Again the use of the word “billed.”
We have now: (a) Peters’ intention to make the cattle deliverable to Peters Commission Company; (b) the railroad’s custom or rule that the waybill and the bill of lading must correspond; (c) Jarvis’ statement that J. A. Peters gave the billing instructions; and (d) Wallwork’s statement that it was an oversight not to include “care Peters Commission Company” in the bill of lading.
We know this was a mistake on Peters’ part, because he frankly states his purpose to make them deliverable to Peters Commission Company. We know it was a mistake on Jarvis’ part, because, under his rules, the waybills and contract must correspond. We know it w_as a mistake on the carrier’s part, because Peters was the only man they knew, he was as to them the shipper; he wanted them delivered to Peters Commission Company, and the carrier knew that waybill and bill of lading should correspond.
We think it clear that there was evidence sufficient to support an issue of mutual mistake? and the jury on that evidence has found that there was such mutual mistake.
This brings us to the case of Jones v. Flournoy, 37 S. W. 236, which, appellant says, conflicts with this case.
In that case, Jones executed a deed to the railroad, one of the provisions of which was that a depot should be established on said railroad at Beeville.
- At the time Jones signed, no one for the railroad being president, he had added the words .“and the establishment (of the said depot on the herein described block of land.”
The depot was established and has been maintained. Jones’ suit was to have the deed reformed so as to require the use of the entire block of ground for depot purposes. This he asked on the ground of fraud and mistake.
The preparation of the deed was not participated -in by the appellee; the provision that was inserted was put in by appellant himself.
The court held there was no fraud and that the very subject of the alleged mistake was considered by appellant when-he signed the deed, and the clause now attempted to be reformed was supplied by him. The mistake, if any, was unilateral and not of the character that equity will relieve against. There is clearly no conflict between the decision in tbis case and the decision in Jones v. Flournoy.
On the other hand countless authorities could be adduced that a mutual mistake *403made in drawing a contract may be alleged, and, if satisfactorily established by evidence, the instrument may be reformed and a decree entered accordingly. Gammage v. Moore, 42 Tex. 171.
We now come to the appellant’s contention that since the Carmack Amendment no verbal contract is permissible.
As said before, a reference to the cases cited by appellant will show that the United States and other courts have held that since the Carmack Amendment a verbal contract conflicting with the carrier’s tariff and schedules will not be recognized. The reason for this is apparent. Under the Interstate Commerce Act, the rates and schedules are embodied in the tariffs. Not even the carrier can depart from it. To do so is a criminal offense. It follows, of course, that neither the carrier nor the shipper, nor both together, could make either a verbal or a written contract, which did not comply with the tariff and schedules.
This question is incidentally discussed in the case of G., C. & S. F. v. Vasbinder, 172 S. W. 763.
It is to- be borne in mind that there is no question here of a verbal contract, but the question is whether a written contract, which, by mutual mistake, omits to state the true consignee, that the parties agree upon, whether the true consignee can be ascertained by parol.
To state this question is, of course, to answer it. It has been the law since time immemorial that the true intent and meaning of a written agreement can always be shown by parol, when the omission is caused by fraud or mutual mistake. The very case of Waco Tapp Railroad v. Shirley, 45 Tex. 377, which the appellant cites, is very good authority for that proposition.
As to the contention of the appellant that mutual mistake must be shown with certainty, it may be said in a sense every fact must be shown with certainty. For a discussion of just what certainty is required, see Mortgage Co. v. Pace, 23 Tex. Civ. App. 222, 56 S. W. 377. It will not do to submit to the jury that given facts must be found to their satisfaction, or must be proved with clearness, or a certainty, because that requires a heavier burden than the law requires.
See Rutherford v. Basham, 38 S. W. 381; Sabine Tram v. Bancroft, 39 S. W. 177; Rodriguez v. Espinosa, 25 S. W. 669 — which authorities all establish that the question should be submitted to the jury in the ordinary form and with the ordinary tests, and that, having answered in the affirmative, the question of mutual mistake is established.
To briefly recapitulate this case, the City Bank never complained in its pleadings,that the carrier delivered without the production ' of the bill of lading. Its sole and only allegation was that the carrier did not deliver to the consignee named in the bill of lading, the First National Bank.
Upon inquiry before the jury, it has ascertained that J. A. Peters, the agent of the bank, had instructed the carrier to deliver to the Peters Commission Company; that both he and the carrier had intended to put this instruction in the waybill and the bill of lading; that by mutual mistake they omitted it from the bill of lading; that the carrier, in compliance with instructions, had delivered the cattle to the Peters Commission Company.
In the face of these findings and upon the issues presented by the appellant’s pleadings, we see no escape .from the conclusion that judgment was properly rendered for the ap-pellees.
The Carmack Amendment, nor any other law, is intended as an instrument of oppression. The natural justice with which we ar'e all imbued revolts at the idea of allowing the City Bank to, on the one hand, instruct the carrier to deliver the cattle to the Peters Commission Company, and, on the other hand, to sue for damages for not delivering them to the First National Bank.
. In addition to this, it is shown in the case that there were many other lots which were delivered to the Peters Commission Company, in accordance with the City Bank’s instructions, and in every instance those deliveries were known to the bank, and it did not complain of them, but, on the other hand, acquiesced in and ratified such deliveries.
For the reasons indicated, the motion for rehearing is overruled.