for the recovery of the photograph. In all other respects the decree is affirmed, without costs to either party in this court. MODIFIED IN PART.

AFFIRMED IN PART.

MR. CHIEF JUSTICE MOORE, MR. JUSTICE BENSON and MR. JUSTICE BEAN Concur.

Argued July 9, affirmed July 27, 1915.

Rehearing granted September 21, reargued October 11, former opinion approved November 9, 1915.

GRICE v. OREGON-WASH. R. & N. CO.*

(150 Pac. 862; 152 Pac. 509.)

Appeal and Error-Presentation of Grounds of Review in Court Below-Exceptions-Necessity.

1. Where the facts were all stipulated, no exception to the court's decision need be taken under Section 172, L. O. L., declaring that no exception need be taken to any decision upon a matter of law; the judgment being merely an application of the law to the facts.

Commerce Interstate Commerce-Regulations-Liability of Carriers. 2. The interstate Commerce law (Act Feb. 4, 1887, c. 104, 24 Stat. 379), which was designed to prevent preferences, does not prohibit a carrier from assuming the common-law liability in carrying goods from one state to another.

[As to effect of Interstate Commerce Act upon carrier's liabil ity for loss of or injury to goods or baggage, see note in Ann. Cas. 1912B, 672.]

Carriers Carriage of Goods-Action-Burden of Proof.

3. A carrier, seeking to reduce its liability for goods lost in transit, must allege and prove facts entitling it to the reduction.

Principal and Agent-Authority of Agent.

4. A transfer company, authorized to deliver household goods to a particular railroad company for shipment has no authority to consent to a reduction of the carrier's common-law liability, and the agreement reducing the liability is not binding on the shipper.

Carriers-Carriage of Goods-Liability-Stipulation.

5. A bill of lading provided that the amount of any loss or damage for which the carrier was liable should be computed upon the basis

*For rulings on the effect of stipulations as to carrier's liability, see note in 28 L. R. A. (N. S.) 293. REPORTER.

78 Or.-2

of the value of the property, being the bona fide invoice price, unless a lower value had been represented in writing by the shipper, or agreed upon, or is determined by the classification or tariff upon which the rate was based. A carrier lost goods delivered under such a bill. Neither the bill of lading nor the statement of facts on which the cause was tried showed the valuation of the property. The statement of facts failed to show that a value lower than the invoice price had been represented by the shipper, or that a lower value had been agreed upon, or the value as determined by the classification or tariff upon which the rate was based. Held that, as none of these matters were disclosed by the pleadings or statement of facts, the carrier was liable for the actual value of the goods under the common-law rule.

[As to limiting by bill of lading carrier's liability, see note in 88 Am. St. Rep. 74.]

Principal and Agent-Waivers Ratification.

6. For a waiver of liability made by a drayman to an express company to become binding on a shipper by ratification, the company must show that the shipper was fully advised regarding the waiver soon enough to have rejected it.

Principal and Agent Custody of Goods-Presumption-Waiver to Express Company.

7. Custody of goods at the moment of shipping is not such indicia of authority that agency to waive liability on the part of an express company by which he is shipping them will be presumed.

From Multnomah: ROBERT G. MORROW, Judge.

Department 1. Statement by MR. JUSTICE BURNETT. BUrnett. This is an action by Otto Grice and Florence Grice against the Oregon-Washington Railroad & Navigation Company, to recover damages from the defendant, a common carrier engaged in interstate commerce, for failure to deliver goods intrusted to it by the plaintiffs for shipment from Spokane, Washington, to Portland, Oregon. The corporate character of the defendant and the nature of its business are admitted. The complaint alleges that on or about January 21, 1913, in Spokane, Washington, the plaintiffs delivered to the defendant, and it accepted, for transportation by freight to Portland, Oregon, certain of their household goods. It is also alleged and admitted that the plaintiffs paid to the defendant the amount demanded by it as a freight charge for the service contemplated.

The plaintiffs charge, also, that the defendant failed to deliver all the goods, the portion not delivered amounting in value to $545.54, for which sum they demand judgment. The defendant admits receiving the goods, and that it was unable to deliver a part of the shipment. Other allegations of the complaint are denied, except as stated in the affirmative matter of the answer. The pleading, after averring the corporate character and business of the defendant, proceeds as follows:

"That heretofore, and on or about the twenty-second day of January, 1913, at Spokane, Washington, Otto Grice and Florence Grice, plaintiffs herein, acting by and through one Pacific Transfer Company, which was then and there in the possession of the goods hereinafter mentioned, caused to be delivered to the defendant a shipment of freight, contents and condition of package unknown, and represented by the shipper to be two boxes of household goods, one boxed trunk, one crated cedar chest, and one barrel and contents, weighing 1,280 pounds, prepaying the charges thereon in the sum of $12.70, with instructions to transport said freight over its line of railroad from Spokane, Washington, to East Portland, Oregon, and there deliver said shipment to Otto Grice. That at the time of delivering said shipment to the defendant, said plaintiffs, by and through their agents and employees, and particularly the Pacific Transfer Company, the shipper in possession, and in charge of said shipment, elected to have said goods transported under the terms and conditions of the uniform bill of lading hereinafter set forth, and then and there issued and delivered to the said shipper, for the said plaintiffs herein, and did then and there release to a valuation of ten dollars per hundred-weight the said shipment, in case of loss or damage to said goods. while in transit, and did indorse said agreement upon the bill of lading, issued and delivered to, and received and accepted by, the said plaintiffs, under which

agreement the said shipment was transported. The defendant, Oregon-Washington Railroad & Navigation Company, at all the times mentioned, had in force and effect a rate covering the said shipment, where the same was released to a valuation of ten ($10) dollars per cwt., and which rate was and is less than the rate charged for shipments not released to ten ($10) dollars per cwt., and said rates were duly filed, posted, and published as required by the interstate commerce law, and that the shipment moving from Spokane, Washington, to Portland, Oregon, was and is an interstate shipment, and at all times, subject to the rules, regulations, and rates so posted, filed, and published with said Interstate Commerce Commission. That in and by the terms and conditions of said bill of lading under which said shipment moved, it is provided, among other things, as follows: 'The amount of any loss or damage for which any carrier is liable shall be computed upon the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepared) and at the place and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper or has been agreed upon or is determined by the classification or tariffs upon which the rate is based, in any of which events such lower value shall be the maximum amount to govern such computation, whether or not such loss or damage occurs from any negligence.' And said bill of lading further provides: 'It is mutually agreed as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (including conditions on back hereof), and which are agreed to by the shipper and accepted for himself and his assigns.' That at the time plaintiffs delivered this shipment to the defendant at Spokane, Washington, they represented to said de

fendant that said shipment weighed 1,280 pounds, and was of the value of ten dollars per cwt., to wit, of the value of $128.00, and agreed that in case of loss. or damage to said property, or any part thereof, the total value of the same, or the portion lost and damaged, was ten dollars per cwt., and, having so agreed and represented, they secured the lower rate applying on shipments so released and valued. That thereafter, and while said shipment was being transported over the line of railroad of the defendant, a portion of the said shipment was lost, stolen, or damaged, the exact manner of which is unknown to this defendant. That the portion of the shipment which was lost or damaged, as hereinbefore mentioned, weighed 670 pounds, and, under the tariffs, bills of lading, reduced rate, and agreement, as to value of ten ($10) dollars per cwt., under which this shipment moved, the value of said portion of said shipment so lost and damaged, was and is $67. That the prepaid charges on 25 pounds-being the portion of said shipment lost or stolen, at the rate of 99 cents per cwt., which was and is the lawful rate applicable thereto―amount to the sum of 24 cents, making a total amount due the plaintiffs of $67.24. Thereafter, and prior to the commencement of this action, this defendant offered and tendered to the plaintiffs, in full settlement of all liability arising out of the alleged loss set forth in the complaint, the sum of $67.24, but plaintiffs refused to accept the same. By reason of the premises, the plaintiffs are and ought to be estopped from asserting or from claiming or recovering from defendant any greater sum than $67.24, for said alleged loss and damage, and this defendant offers to permit the plaintiffs to take judgment for the sum of $67.24, and that the defendant recover against the plaintiffs its costs and disbursements of this action."

This new matter is denied by the reply. At the hearing it was agreed in writing by the parties that the cause should be tried, argued and submitted upon the following statement of facts: