common-law liability would attach except as limited by the laws of the United States and of the several states, so far as any such statutes applied.

The plaintiffs deliberately chose the reduced rate, and thereby assumed under the conditions of the bills of lading which they accepted the burden of proving negligence against the carriers in case any loss or injury to the goods should 228 occur in the course of the transportation, and it is not for this court to relieve them of the burden which they thus assumed.

As regards the stipulation in the bill of lading requiring any claim for loss or damage to be made in writing within thirty days after the delivery of the property, we think that such stipulation was waived by the carrier, whose agent with full knowledge raised no objection to the claim on that ground: 5 Am. & Eng. Ency. of Law, 2d ed., 322-325.

No objection is made to the granting of the plaintiff's second prayer concerning the measure of damages, except on the ground that there is not sufficient evidence to go to the jury as to the market value of the goods at Baltimore, in either an injured or uninjured condition on their arrival in that city.

We think the evidence in this respect too meager, but as there is a provision in the bill of lading to the effect that "the amount of any loss or damage for which any carrier becomes liable shall be computed at the value of the property at the place and time of shipment under this bill of lading,' the measure of damage should be in accordance with this provision; that is, their value should have been ascertained at Atlanta, as of the days and times of shipment. It was so held by this court in the case of McCoy v. Erie R. R. Co., 42 Md. 498, under a similar provision in the bill of lading in question in that case. Of course, the parties may waive this provision in the present case, if they so desire.

We think the proceedings were properly brought in tort jointly against both carriers: Baltimore & O. R. R. Co. v. Pumphrey, 59 Md. 399; 1 Poe Pldg., secs, 296, 526, 528; Mershon v. Hobensack, 22 N. J. L. 372.

As to the appeal of the Paper Mills Company from the action of the trial court in dismissing the suit as against the Central of Georgia Railway Company, we think such action was proper.

The plaintiffs had closed their case without offering any evidence whatever of negligence on the part of this defendant, and by the contract of carriage under which the goods were shipped no negligence could be presumed against it from

229 the mere fact that the goods which had been delivered to it in good condition were received at their destination from the terminal carrier in a damaged condition.

For these reasons we think there was error on the part of the learned judge in the court below in granting the plaintiffs' first and second prayers, and in refusing to grant the defendant's second, eighth and ninth prayers, and we must therefore reverse the judgment in No. 62, but as the plaintiffs may be able upon a second trial to adduce evidence of negligence, we will award the plaintiffs a new trial as to the Merchants' and Miners' Transportation Company.

Judgment in No. 62 reversed, with costs and a new trial awarded.

Judgment in No. 63 affirmed, with costs to appellee.

The Limitation of a Carrier's Liability in bills of lading is the subject of a note to Chicago etc. Ry. Co. v. Calumet etc. Farm, 88 Am. St. Rep. 74. The general rule is that a carrier cannot, by contract with a shipper, limit its liability for negligence: Baker v. Boston etc. R. R., 74 N. H. 100, 124 Am. St. Rep. 937; Southern Express Co. v. Marks, Rothenberg Co., 87 Miss. 656, 112 Am. St. Rep. 466; Eckert v. Pennsylvania R. R. Co., 211 Pa. 267, 107 Am. St. Rep. 571; Fisher v. Boston etc. R. R. Co., 99 Me. 338, 105 Am. St. Rep. 283.

The Burden of Proof as Between Connecting Carriers to show who is at fault for loss or injury is the subject of a note to Beede v. Wisconsin Cent. R. R. Co., 101 Am. St. Rep. 392. Subsequent deeisions on this question are: St. Louis etc. R. R. Co. v. Pearce, 82 Ark. 353, 118 Am. St. Rep. 75; St. Louis etc. Ry. Co. v. Renfroe, 82 Ark. 143, 118 Am. St. Rep. 58; Rolfe v. Lake Shore etc. Ry. Co., 144 Mich. 169, 115 Am. St. Rep. 388; St. Louis etc. Ry. Co. v. Coolidge, 73 Ark. 112, 108 Am. St. Rep. 21.

The Liability of an Initial Carrier for the torts or negligence of connecting lines is the subject of a note to Pennsylvania Co. v. Loftis, 106 Am. St. Rep. 604.

MORGAN v. LANDSTREET.
[109 Md. 558, 72 Atl. 399.]

CORPORATIONS, Subscriptions to Stock of, When Become Due. Where the capital stock and the number of shares are fixed by the act or certificate of incorporation, no assessment can be made on the shares of any subscriber until the whole number of shares have been taken. (p. 537.)

CORPORATION—Subscription, Only Unconditional can be Considered. For the purpose of considering whether all the shares of stock of a corporation have been subscribed so as to make the subscribers liable on their subscription, only unconditional subscriptions, payable in cash, can be considered. (p. 538.)

CORPORATION-Subscription to Stock When the Corporation is Doing Business and the Whole Capital has not been Paid in.-The

fact that a corporation was doing business when a subscription to its capital stock was made does not deprive a subscriber of the benefit of the rule that his subscription does not become enforceable until the whole capital stock has been subscribed. (p. 541.)

CORPORATION—Subscription to Capital Stock, Estoppel Against Denying Liability, When does not Exist-Waiver.-The fact that a subscriber to the capital stock of a corporation knows it has been doing business in a small way and that he was afterward elected a director does not estop him from denying liability on his subscription until the whole of the shares are subscribed for, if he never qualified as director, nor attended a directors' or shareholders' meeting, nor participated in any business carried on by the corporation. (p. 542.)

Joseph C. France, Stuart S. Janney, A. C. Ritchie and Gibson & Smith, for the appellants.

Benjamin A. Richmond, Edgar H. Gans and J. F. C. Talbot, for the appellee.

582 PEARCE, J. This action was brought by the circuit court for Baltimore county by John H. Morgan and Frank B. Smith, receivers of the Maryland Storage Company, a corporation under the laws of Maryland, duly adjudged to be insolvent, against Fairfax S. Landstreet, to recover the sum of $30,000, being the amount of the defendant's written subscription made June 10, 1907, for six hundred shares of the capital stock of said company of the par value of $50 per share. The proceeding was by way of attachment against the defendant as a nonresident, who entered a voluntary appearance in the summons case. The short note contained one count for money due on account stated, and a special count on the contract of subscription. The defendant filed the two general issue pleas in assumpsit, and a third plea, "that the subscription mentioned in the plaintiffs' declaration was subject to a condition precedent, that said subscription was not to be binding on the defendant until all of the original capital stock of the said Maryland Storage Company was duly subscribed, and that 583 subscriptions were never obtained for all of said original stock, and said condition precedent never complied with, whereby the defendant's subscription never became effective or binding." The plaintiffs joined issue on the defendant's first and second pleas, and to the third plea filed two replications-first, that said subscription was not subject to the condition precedent pleaded; and, second, that the defendant, by his acts, had waived any and all defense on account of the alleged fact that all of the original capital stock of the Maryland Storage Company was not subscribed.

The defendant joined issue on the first replication to the third plea, and as to the second replication, rejoined that he

had not, by his acts, waived any defense on account of the alleged fact that all of the said original stock had not been subscribed. And the plaintiffs joined issue by way of surrejoinder on the defendant's rejoinder to the plaintiffs' second. replication to the defendant's third plea. It thus appears that the fact of the subscription was admitted, and also that no part of the same has been paid, and under the pleadings two questions only were in issue-first, whether the contract of subscription was subject to the condition precedent pleaded; and, second, if so, whether such condition had been waived by the acts of the defendant.

At the close of all the testimony on both sides of the case, the defendant moved to strike out certain items of testimony which had been admitted subject to exception, and the plaintiffs moved to strike all the testimony adduced at the trial. which tends to qualify the written subscription, whether contained in the defendant's own statements or in his letters offered in evidence, or in the testimony of the witnesses Timanus and Brady; also defendant's statement of what he told Timanus as to taking the last $30,000 of stock, when he, Timanus, had secured the balance, and also what he said either to Redwood or Brady, as to any subscription to be made to this stock by the Western Maryland Railroad Company. Both these requests were refused.

The plaintiffs then offered five prayers, all of which were 584 rejected, and the defendant offered three prayers, of which the second and third were rejected and the first was granted, as follows: "The court instructs the jury that by the uncontradicted evidence in the case the stock of the Maryland Storage Company authorized by its charter was never fully subscribed, and their verdict must be for the defendant, there being no evidence in the case legally sufficient to estop the defendant from setting up the defense of partial subscription to stock," thus withdrawing the case from the jury. The defendant excepted specially to the plaintiffs' second prayer on the ground that there was no evidence that defendant subscribed to any increased capital stock of the storage company, and not its formative or original stock, and this special exception was sustained; all of these rulings being embraced in the single exception taken.

A brief statement of the history of the case will throw material light upon the situation, before going into the law applicable to the case.

The storage company was incorporated under the laws of Maryland, November 18, 1904, to carry on a forwarding and

warehouse business, there being seven directors, and the authorized stock being three thousand shares of the par value of $50 each. Mr. Timanus was then president of the storage company, and Mr. Landstreet was then vice-president of the Western Maryland Railroad Company. This company had recently established a tide-water terminus at Port Covington, and one of the principal objects of the organization of the storage company was to secure the storage business incidental to the new tide-water terminus. This appears in Mr. Timanus' letter of July 1, 1904, to Mr. Landstreet as vice-president of the railroad company. On November 17, 1904, Timanus, learning that the railroad company was about to acquire the possession of Brown's wharf, on the north side of the harbor of Baltimore City, proposed to Landstreet to take a lease of the warehouse then on that wharf. This permitted, without further cost for building, a small active business, requiring nine or ten 585 clerks and laborers and doing a business of about $1,800 a month. He testified they were trying to get the railroad company or Landstreet interested in the storage company. No agreement was reached in the matter of the lease until June 12, 1906, when a lease of Brown's wharf was executed for five years, containing a covenant on the part of the storage company to erect a storage-house on York street, to be completed, if possible, by January 1, 1907. At that time there was no actual subscription by Landstreet, either for the railroad company, in his own name, or for any other individual. In May, 1905, the charter was duly amended, so as to increase the number of directors from seven to nine. In July, 1906, a stockholders' meeting was called for the purpose of increasing the capital stock from $150,000 to $250,000, and the number of directors from nine to twelve. It appears from the minutes of that meeting that stockholders were present representing sixty-five shares of stock, that being more than two-thirds of the whole number of shares then issued, and that these voted to increase the amount of capital stock and the number of directors as above proposed. These proceedings, however, were abortive, both because the requisite notice was not properly addressed to the stockholders, and because the proposed amendment was not acknowledged and recorded as required by sections 51, 52 and 55 of article 23 of the code.

In May, 1907, Landstreet resigned as vice-president of the railroad company, and Brady, vice-president of the storage company, testifies that at that time he asked him when he would sign a subscription, as some who had subscribed