damages. . . . Apart from the stipulation of these bills of lading, the ordinary measure of damages in cases of this sort is the difference between the market value of the property in the condition in which it should have arrived at the place of destination and its market value in the condition in which, by reason of the fault of the carrier, it did arrive. (New York etc. R. R. Co. v. Estill, 147 U. S. 616, [37 L. Ed. 292, 13 Sup. Ct. Rep. 444, see, also, Rose's U. S. Notes].) The stipulations of these bills of lading changed the rule in the requirement that the invoice price at the place of shipment should be the basis for assessing the damage."

The case of Boston & Maine R. R. v. Piper, 246 U. S. 439, [Ann. Cas. 1918E, 469, 62 L. Ed. 820, 38 Sup. Ct. Rep. 354], is not opposed to the foregoing. Therein it was held that a provision exonerating the carrier from losses incurred by the shipper in consequence of the negligence of the former is illegal and not binding upon the shipper, and "is not within the principle of limiting liability to an agreed valuation which has been made the basis of a reduced rate."

In no decision to which our attention has been called has the subject received more careful and thorough consideration than in Zoller Hop Co. v. Southern Pacific Co., 72 Or. 262, [143 Pac. 931], decided by the supreme court of Oregon. Therein it is said: "It is reasonable and natural that the care and risk involved in the carriage of goods should be in proportion to their value. It is proper and legitimate that the greater the risk and responsibility, the greater should be the recompense to the one concurring therein. The converse is equally true, so that consequent damages are reduced in proportion to the lesser responsibility for the goods. The risk and the rate have a logical and corresponding relation to each other, based upon the value of the property intrusted to the carrier. If it is lawful to agree in advance upon a more or less conventional value of the chattels for the purpose of securing cheaper rates in favor of the shipper, it is quite as proper to use the same value as a basis upon which to compute damage for the breach of the contract . . . It accords with sound doctrine, therefore, that at the outset the parties may in good faith fix upon the value of the property for all contingencies likely to arise in the transaction, and this does. not in any way relieve the carrier from the results of his own negligence."

...

In 10 Corpus Juris, 57, it is said: "Before the enactment of the Carmack amendment the greatest confusion existed as to whether a limitation of the carrier's liability for loss or injury to a specified value was valid in case the shipment was lost or injured by reason of the negligence of the carrier . . The effect of the Carmack amendment is, of course, to make the rule uniform in all jurisdictions of the United States, so far as interstate shipments are concerned, and to render valid a limitation of the character under consideration, whether the loss or injury was due to the carrier's negligence or not."

Furthermore, it is said that even in states where such a contract is held void under statutes prohibiting carriers from limiting their common-law liability, "a contract for an interstate shipment, made in a state where such a statute is in force, is valid under the Carmack amendment, inasmuch as the decisions of the federal courts prior to the amendment held such contracts valid.'

Our own supreme court has also directly upheld the validity of such agreement.

In Pierce v. Southern Pacific Co., 120 Cal. 156, [40 L. R. A. 350, 52 Pac. 302], it was declared that effect must be given to the contract of the parties making the invoice price at the point of shipment the measure of damage, "and where no invoice price was actually made out, and agreed upon, that expression must be understood as indicating the actual cash value of the trees at the point of shipment, when loaded and ready for transportation."

The question was fully considered in Donlon Bros. v. Southern Pacific Co., 151 Cal. 763, [12 Ann. Cas. 1118, 11 L. R. A. (N. S.) 811, 91 Pac. 903], involving the shipment of horses, and the court said: "The contract is one in which the valuation of the property was agreed to and for the purpose of fixing transportation charges and as measuring the responsibility of appellant. It was not a contract limiting liability. It was a contract dealing primarily with value-the value of the horses shipped. That was agreed to and, of course, the agreed valuation must be deemed to be the actual valuation of the contract-its actual valuation for all purposes of the contract." [2] Nor do we understand how this covenant in the contract is affected in the least by the fact that there was a

separate and distinct charge for the refrigeration. The charge was distinct, but the refrigeration itself was inseparably connected with the transportation of the fruit and was an essential part of the transaction. The loss from imperfect refrigeration was damage for which the carrier was liable on that bill of lading and the condition to which we have reference applied "to any loss or damage for which the carrier is liable." The fact that there was only one rate for the refrigeration does not derogate from the validity of the contract, since the difference in the rate for the transportation would be a sufficient consideration to uphold it.

Another important question is involved in the construction and application of this provision of the contract.

As to the first count in the complaint the court found that the grapes were sold to the best advantage for the sum of $980; that the amount of the freight charge was $496.12 and of the refrigeration was $95; that the invoice value was $783; that if the fruit had arrived in time and uninjured, it could have been sold for $1,957.50. The court concluded that the plaintiffs suffered damage to the extent of the difference between said $1,957.50 and $980, to wit, the sum of $977.50, for which judgment was allowed.

As to the second count, the court found that the fruit was sold for the sum of $1,097.75, and that if it had been received on time and in a marketable condition it would have brought the sum of $1,860. It was also found that the invoice price was $930, the freight charge $494.97, and the refrigeration charge the sum of $95. The damage allowed was, therefore, the sum of $762.25.

In reference to the third shipment, it was found that it was sold for $1,133.75, that if there had been no breach of the contract, it could have been sold for $2,557.50; that the invoice price was $1,255.50, the charge for transportation was $494.97, and for refrigeration was $95. The court allowed as damages the difference between the selling price and what it would have brought, to wit, the sum of $1,423.75.

It is the claim of appellant that, in any event, under said. provision of the bill of lading the extent of the recovery is measured by the actual loss, which is determined by the difference between the invoice price with the freight and refrigeration charge added, and the selling price, and that it was entirely improper for the court to consider what the fruit

40 Cal. App.-39

1

might have sold for at the point of destination. Under this view, for the first mentioned shipment, the account would stand as follows: }

For the second cause of action we would have:

[3] Another view of the construction of said provision, which supports the conclusion of the lower court, suggested by respondents, is that said invoice price simply provides the maximum amount to be recovered in case of loss, but does not prevent the recovery of the difference between the selling price and what the goods could have been sold for if there had been no injury, provided such difference does not exceed said invoice price. Such seems to be the view taken by the supreme court of this state in the very recent case of Olcovich v. Grand Trunk Ry. Co., 179 Cal. 332, [176 Pac. 459]. Therein it is said: "While there are late cases holding that the measure of damages under such a bill of lading as that herein is the difference between the cost price at the shipping point and the selling price of the injured freight at the point of destination . . . we prefer to follow the general view above stated." The general view to which the court thus refers is

expressed in the earlier part of the opinion as follows: "While the exact question has never been determined in this state, in the case of a partial loss with such a contract it has been determined, in harmony with the general view, that the loss is limited by the value stated and agreed upon in the bill of lading in the case of a total loss. (Pierce v. Southern Pacific Co., supra.) If this limit is valid as to a total loss, there seems to be no reason why it should not also be considered as a limitation upon the damage in the case of a partial loss. It is declared further that the authorities are not in accord as to the question, but the supreme court approved the view announced in 10 Corpus Juris, section 612, and 3 Sutherland on Damages, 3391.

In the Pierce case, supra, it is to be observed that the bill of lading provided "that the actual invoice cost at point of shipment will be taken as measure of damages," language of somewhat different import from that to be construed herein. It was also held that it was error for the lower court to permit the market value of the trees at Riverside, the point of destination, to be shown, and that the injury should have been limited to what was the value in Florida, the shipping point. It was, therefore, in effect held that the value in Florida was not only the measure of the damages that could be recovered, but that it was the only basis upon which such damage could be computed. It may be added that obviously it would have made no difference in the result in that case whether said value was considered as the measure of the recovery or the basis upon which the damages should be computed, since there was a total loss.

In Corpus Juris, supra, the rule is stated as follows: "The parties may, by express provisions to that effect, stipulate that in case of partial loss, the damage shall be proportioned on the basis of the sum named as the maximum limit; but where this is not done the question becomes one of construction and very generally the view is entertained that such stipulations are to be considered as permitting recovery for the damages actually done, the amount recoverable not to exceed the amount agreed on as compensation for a total loss."

As stated in Sutherland, supra, "where a statute authorizes a limitation of liability by contract and a contract is made limiting liability for loss of livestock to the actual cost at point of shipment and in no event to exceed a stipulated sum