of law upon its findings of fact, ought to have found for the appellant, the defendant below."

And so we think in the case at bar. When the evidence showed, as it did, that the decedent's sugar was delivered to and received by the appellee for transportation and delivery, under the terms of a special contract, there could be no recovery by the appellant in this action, because the special contract was not sued on, and because of the fatal variance between the case made by the allega. tions of the complaint and the case made by the evidence. Nor will it obviate this difficulty to say that, by the agreed statement of facts, the parties submitted to the court for trial a different case from the case stated in appellant's complaint; for, in that view of the case before us, it would be an agreed case, under the provisions of section 386 of the civil code of 1852, or section 553, R. S. 1881. "In an agreed case, no motion for a new trial is necessary, but the party aggrieved must except to the decision of the trial court, upon the agreed statement of facts, and unless the record shows that an exception was taken to the decision at the proper time, it will present no question for the decision of this This point is settled by the decisions of this court. Fisher v. Purdue, 48 Ind. 323; Manchester v. Dodge, 57 Ind. 584." Lofton v. Moore, 83 Ind. 112.

In this case the appellant did not except at the time to the finding or decision of the trial court upon the agreed statement of facts. In any view of the case, therefore, we are of opinion that there is no error in the record of this cause which would authorize the reversal of the judgment below.

The judment is affirmed, with costs.
Petition for a rehearing overruled.

Pleading in Suit on Special Contract of Transportation. Where there is a special contract of transportation the Indiana authorities are to the effect that this must be specially declared on. Indianapolis, etc., R. R. Co. . Remmy, 13 Ind. 518; Jeffersonville, etc., R. R. Co. v. Worland, 50 Ind. 399; Lake Shore, etc., R. R. Co. v. Bennett, 89 Ind. 457; s. c., 6 Am. & Eng. R. R. Cas. 391.

At any rate the exceptions from liability embraced in the special contract must be set out. Ferguson v. Cappeau, 6 H. & J. 394; Fairchild v. Slocum, 19 Wend. 329. But see Tuggle v. St. Louis, K. C. & N. R. Co., 62 Mo. 425. An action will lie in tort for non-delivery without declaring specially on the contract. Clark v. St. Louis, K. C. & N. R. Co., 64 Mo. 440; Oxley v. St. Louis, K. C. & N. R. Co., 65 Mo. 629.

LOUISVILLE AND NASHVILLE R. R.

v.

TRENT.

(11 Tennessee Reports, 82.)

A railroad company shipped a car of stock, and the contract to ship provided: "And it is further agreed, that in case of accident to or delay of time from any cause whatever, the owners or shippers are to feed, water and take proper care of stock." The circuit judge charged that in all cases of unavoidable delay, the railroad was by the contract obligated to feed and water the stock. This was error. The terms of the contract only provide that the owner or shipper shall feed and water the stock in certain defined emergencies, and does not undertake that, in all other cases the carrier shall do so.

APPEAL from the Circuit Court of Fayette County.

H. B. Folk and H. C. Moorman for Railroad.
Geo. Hardin for Trent.

TURNEY, J.-In December, 1879, defendant in error shipped from St. Louis to Stanton, Tennessee, a car-load of horses under a contract with the St. Louis & Cairo Short Line R. R.

This suit is brought against the Louisville & Nashville R. R., one of the connecting lines, to recover damages for injury sustained by the horses, and also an amount paid under protest for feeding the horses at Milan, Tennessee. Amongst others, the contract to ship contains the following stipulations: "And it is further agreed, that in case of accident to or delay of time from any cause whatever, the owners and shippers are to feed, water and take proper care of stock."

"And it is further agreed, that while the said contracting companies' employees shall provide the owner or person in charge of the stock, all facilities in trains or at stations for taking care of the same, the business of the said contracting companies shall not be delayed by the detention of trains to unload and reload stock, for any cause whatever," etc.

The court, in substance, charged the jury, that in all cases except of unavoidable delay, accident or collision, that the railroad companies were, by the contract, obligated to feed and water the stock.

This was error.

The language of the charge is too comprehensive. The terms of the contract only provide that the owner or shipper shall feed, water, etc., in certain defined emergencies, and does not undertake

that, in all other cases the carrier shall do so. The latter is a question to be determined from all the facts of the case, and is not, in terms, provided for in the written contract for shipment. Reversed.

Feeding and Watering Live Stock in Transit.-A carrier of live stock is bound at common law to feed and water them while they are in transit. Cragin v. N. Y. Central R. Co., 51 N. Y. 61; Dunn v. Hannibal & St. Joe R. Co., 68 Mo. 268.

But by special contract this duty may be thrown upon the owner of the goods, in which case the carrier is not liable for neglect thereof. South & N. Ala. R. Co. v. Henlein, 52 Ala. 606; Heineman v. Grand Trunk R. Co., 31 How. Pa. 430; Cragin v. N. Y. Central R. Co., 51 N. Y. 61.

But see Dunn v. Hannibal & St. Joe R. Co., 68 Mo. 268; Bryant v. S. W. R. R. Co., 6 Am. & Eng. R. R. Cas. 388.

In an action against a railroad company the complaint averred that the defendant neglected for several days to provide cars at its station to transport cattle, and that when said cars were furnished it neglected and refused to transport said cattle to their destination with reasonable diligence so that they arrived four days later than they would have done. Held, that it did not appear what part of the delay was caused by the failure to furnish cars, and what part by the delays en route, and that the complaint should be amended in this respect.

APPEAL from Circuit Court, Sauk County.

Lusk & Perry for respondents.

W. F. Vilas for appellant.

ORTON, J.-That part of the order denying the motion of the defendant to make the complaint more definite and certain is appealed from. As said in reference to a similar complaint in a previous case on this call, there appears to be no indefiniteness or uncertainty about the allegations of the complaint, except it may be in the matter of damages. Most of the other defects in this respect, complained of, concern_facts more specially within the knowledge of the defendant. But in respect to the damages complained of, it is proper that the defendant should be informed what part of such damages is claimed to have arisen from the failure to furnish the cars in proper time as agreed, and what part is

claimed to have arisen by the negligent running of the train and delays on the route. The language of this complaint in that respect is different from that in the other case. In that case the delay in not furnishing the cars as agreed, and the delay in the arrival of the stock in Chicago, is precisely the same, and there was no delay on the route, whatever charged in the complaint. The allegation here is that the defendant "neglected and refused to provide said cars at either station for several days, and when provided, neglected and refused to carry said stock to Chicago with reasonable diligence, and said plaintiffs arrived at Chicago about four days later than they would have done," etc. Here part of the several days' delay in providing the cars may be a part of the four days' delay altogether, and what part of the delay is attributable to not providing cars, and what part to not carrying the stock to Chicago with reasonable diligence, is not stated in the complaint. Therein we think the complaint is indefinite and uncertain, and should be reformed in that respect, and that that part of the motion should also have been granted.

That part of the order appealed from is reversed, and the cause remanded for further proceedings according to law.

See Baker & Stratton v. Louisville & N. R. Co., and note, supra; Richardson v. Chicago & N. W. R. Co., infra.

RICHARDSON

V.

CHICAGO AND N. W. Ry. Co.

(Advance Case, Wisconsin. November 20, 1882.)

Allegations in a complaint considered where the cause of action is the failure to provide cars to transport stock and the failure to transport said stock expeditiously. The allegations held to be sufficiently definite.

It is proper for defendant to be informed of what damages are claimed to have arisen from each of the several acts of negligence with which he is charged.

APPEAL from Circuit Court, Sauk County.

Lusk and Perry for respondent.

W. F. Vilas for appellant.

ORTON, J.-That part of the motion to strike out certain redundant matter from the complaint was granted, but that part requiring the complaint to be made more definite and certain was

There ap

denied; and the defendant appeals from that denial. pears to be no indefiniteness or uncertainty about the allegations of the complaint, except it may be in the matter of damages. Most of the other defects in this respect, complained of, concern facts more especially within the knowledge of the defendant. But in respect to the damage complained of, it is proper that the defendant should be informed what part of such damages is claimed to have arisen from the failure to furnish cars in proper time as agreed, and what part is claimed to have arisen by the negligent running of the train and delays on the route.

It seems to us that the language of the complaint in this respect can have but one meaning, and that is, that no damage whatever is claimed from the negligent running of the train or delays on the route, but that all of it is predicated upon the delay in furnishing the cars at the depots named according to the contract. The allegation is that "the defendant disregarded its duty," etc., "and its assurance and agreement," etc., and "neglected and refused to provide said cars at the time appointed, and as requested and promised as aforesaid, for several days, to wit, about four days." Then, after charging that the defendant company "neglected and refused to carry said stock to Chicago with reasonable diligence," it alleges the arrival of the plaintiff with his said stock at Chicago "about four days later than he would have done had the cars been provided as ordered and agreed, and had the stock been carried to Chicago with reasonable diligence.' There was about four days' delay in furnishing the cars, and about four days' delay in all. This leaves no possible chance of any delay on the route. delay, and consequently the damage occasioned thereby, are charged solely to the delay in not furnishing the cars, and none for not carrying with reasonable diligence. "About four days" is the delay in not furnishing cars, and there was "about four days'" delay, or the same delay in arrival, which leaves no delay on the route. We think this is sufficiently definite and certain.

The

That part of the order appealed from is reversed, and the cause remanded for further proceedings according to law.

See Baker & Stratton v. Louisville & N. R. Co., and note, supra; Ayres v. Chicago & N. W. R. Co., supra.