defendant must allege and prove facts sufficient to entitle it to the desired reduction of its liability. Regarding the stipulation of facts as a full declaration of the truth, it becomes necessary to compare it with the pleading of the defendant, to ascertain how much of the answer is sustained by this conventional verdict. As noted above, the defendant's pleading states in substance that, acting by their agent, the Pacific Transfer Company, the plaintiffs elected to have the goods transported under the uniform bill of lading, then and there released the property to a value of $10 per hundredweight in case of loss or damage while in transit, and indorsed the agreement upon the bill of lading. It is conceded on both sides that the property was delivered to the defendant at Spokane by the transfer company as the agent of the plaintiffs. As to the extent of the agency the stipulation is to this effect: That the plaintiffs instructed the Pacific Transfer Company to deliver the shipment to the defendant company for shipment from Spokane to Portland, but gave the transfer company no other or further instructions whatsoever. As stated by Mr. Justice EAKIN in Baker v. Seaweard, 63 Or. 350 (127 Pac. 961): "Any person dealing with an agent does so at his peril." It is a general principle, well established by precedcnt, that if one would charge another by the act of a third party the former must establish the real or apparent authority of the alleged agent. In this instance the extent of the agent's power is stipulated. It was simply to deliver the goods for shipment. The fact has been thus ascertained by the stipulation, and, having been so settled, it is a question of law as to what the agent may do by virtue of such a warrant: Glenn v. Savage, 14 Or. 567 ( 13 Pac. 442).

As a matter of law, it cannot be said that the power of the plaintiffs' agent as defined by the statement of facts was extensive enough to sanction the stipulation for the principals about the value of goods or the agreement to the various conditions and provisos that are usually found on the back of documents like the one in question, unless something more is shown in the way of customary dealings between the parties, or some general usage of which all concerned are deemed to have taken notice as a binding rule of business. It is not pretended that the plaintiffs themselves executed or specially authorized the transfer company to execute for them the so-called bill of lading. Neither is there anything in the stipulation of facts about the plaintiffs having elected to ship under the uniform bill of lading. According to that statement it does not appear that they released the property at a value of $10 per hundredweight. This converted allegation of the answer about election of conditions and release of value must therefore be held to have failed of proof.

5. The principal controversy is upon the effect of the clause quoted in the answer about the basis upon which damage shall be calculated. An analysis of that excerpt reveals that there are four conditions affecting the calculation of damage in case of loss. The first is the bona fide invoice price, if any, to the consignee; but no such valuation appears on the bill of lading or in the stipulation. The second is an exception in case a lower value has been represented in writing by the shipper. The third is when a lower value has been agreed upon; but nothing appears in the statement of facts on either of these subjects. And the fourth is when the value is determined by the classification or tariff upon which the valuation is based. The classification of freight and the tariff

applicable thereto are not disclosed by either the pleadings or the stipulation. Hence there is nothing in the case in the final analysis to affect the valuation one way or the other, with the result that only the true and actual worth of the goods is open to consideration. The statement of facts is also silent upon the allegation of the answer that the plaintiffs represented the shipment to be of the value of $10 per hundredweight. In short, the proof as agreed upon by the litigants does not establish the defendant's case as made in its answer. Having admitted that it received the goods for transportation and that it failed to deliver part of them, the defendant was liable under the commonlaw rule for the actual value of the lost chattels, unless it had shown a lawful contract lessening its liability. The declaration of the truth settled by the parties does not disclose the necessary excuse in favor of the defendant. In this state of the case the Circuit Court drew the only proper conclusion from the agreed facts. The judgment is affirmed.

AFFIRMED. REHEARING GRANTED.

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

Former opinion sustained November 9, 1915.

ON REHEARING.

(152 Pac. 509.)

On rehearing for appellant there was a brief over the names of Mr. Charles E. Cochran, Mr. John P. Hannon and Mr. Arthur C. Spencer, with oral arguments by Mr. Cochran and Mr. Hannon.

For respondents there was a brief with an oral argument by Mr. Lotus L. Langley.

In Banc. MR. JUSTICE BURNETT delivered the opinion of the court.

A statement of the issues in this case appears at page 18, 78 Or. (at page 862 of 150 Pac.), and need not be here repeated. On the rehearing the defendant argued that, under the stipulation of facts, the plaintiffs were bound by all the acts of the Pacific Transfer Company of Spokane, including the execution by it of the bill of lading which the defendant contends released the value of goods to $10 per hundredweight, carrying with it a reduced rate of freight and the accompanying waiver of all value in the settlement of damages for loss of goods above the conventional appraisement. In substance, the defendant maintains as a principle that whoever has possession of goods and tenders them to a common carrier for shipment has apparent authority to bind the owner by any lawful contract of carriage. A number of New York cases are cited in support of this doctrine. The leading one is Nelson v. Hudson R. R. Co., 48 N. Y. 498. There the plaintiff had bought a large mirror from a firm dealing in such goods, and directed the seller to ship it to him by the defendant's railroad. A custom relating to such shipments was known to the firm to the effect that freight of that kind in packages too large to be put into closed cars should be carried on open cars, but at a valuation lessening the amount of damages to be assessed in case of loss. The firm sent the mirror to the railroad company, which issued a restricted receipt according to the usage, and agreed to hold the property until the seller should examine the same and determine whether to accept those conditions or to retain the goods. After

waiting the stipulated time and hearing nothing further, the company forwarded the goods, which were damaged en route. In the opinion by Judge Hunt it was held that the firm had apparent authority to agree to the release. An opinion by Mr. Justice EARL concurs on the ground that the firm had ratified the release after knowing all the facts, but held that its cartman had no authority to make the contract. He made the matter to depend entirely upon ratification. It is significant that the opinion quotes with approval from Redfield, Carriers, § 52:

"As a general rule, the agent to whom the owner intrusts the goods for delivery must be regarded as having authority to stipulate for the terms of transportation. By this we do not mean the porter or cabman, or mere servant, but the consignor of the goods, or any other agent of the owner who purchases or procures them for him."

Another precedent is California Powder Works v. Atlantic & Pacific R. R. Co., 113 Cal. 329 (45 Pac. 691, 36 L. R. A. 648). The plaintiff manufactured powder at Santa Cruz, California, and habitually transported it by narrow-gauge railroad to San Jose, where it became necessary to convey it in trucks to the depot of the defendant and load it on the defendant's broad-gauge cars. During a period of several years this transfer from one road to the other had been committed to a certain drayman, and a course of business had grown up between the parties whereby he in every instance executed the ordinary release of valuation and exemption from damages beyond a certain sum. It was there held that all these circumstances raised an apparent authority of the drayman to execute the release, so that for the loss of a carload of powder by explosion during transportation the