It is claimed by the defendant that the plaintiff was not entitled to recover the full value of the stone lost and damaged, but was only entitled to recover on the basis on which the verdict was directed, namely, at the rate of 20 cents per cubic foot; that this question calls for a setting forth of the classification and tariffs providing for the shipment of "building granite," which was the name of the article used on the bill of lading. There is no doubt that this building granite was to be used for a mausoleum or vault. That fact is testified to by at least three of the plaintiff's witnesses, and is not disputed. In plaintiff's brief it is Isaid that it had a contract "for the construction of a large vault in a cemetery at Minneapolis."

It appears from the record that there is an official classification to which the tariff known as the "class tariff" applies. In other words, all articles commonly made the subjects of transportation are classified according to weight, value, etc., into classes, first, second, third, fourth, fifth, and sixth; the first class being of the highest value, or most bulky in accordance with their value, the sixth class being of the lowest value, or least bulky in accordance with value. It also appears that commodity tariffs are issued, taking an article out of the regular class tariff, and treating it as a commodity by itself, usually, but not always, at a lower rate of transportation than is shown in the class tariff. It appears from the record that, in the official classification applicable from the point of shipment to the point of destination, marble or granite, meaning the rough stone, in car loads, when rated over sixth class, but not higher than fifth class, would take a rate of 16 cents per hundred pounds to Chicago. Also, that marble, granite and onyx in blocks or slabs, when chiseled, polished, or dressed, and boxed, should go at fourth class, in car loads when the consignor's valuation is not expressed, or when it is expressed as exceeding 40 cents per cubic

foot; and when such valuation is expressed at not exceeding 40 cents it goes at fifth class. It also appears that, when the value is not to exceed 40 cents per cubic foot, the statement which appears to be signed "H. G. Co., Shipper," on the bill of lading in this case, must be entered in full on the shipping order and bill of lading, and signed by the consignor.

It also appears from the tariff quotation in the record that when the marble, granite, or onyx is rough quarried, and the consignor's valuation is not expressed, or is expressed at exceeding 20 cents per cubic foot, it goes at fifth class, and when expressed as not exceeding 20 cents it goes as sixth class, with the requirement of the same notation on the bill of lading which is found on the bill of lading in this case. The record shows that the sixth-class rate to Chicago was 22 cents per hundred, or 4 cents more than this shipment paid to the Grand Trunk lines.

If this shipment had moved at fifth class, the rate would have been 26 cents to Chicago, and at fourth class it would have been 31 cents to Chicago.

It is the claim of the defendant that on this shipment, it having been stone fully cut for vault work, the sixth-class rate properly applied, and that this shipment should have paid to Chicago at the rate of 22 cents per hundred pounds instead of 18 cents; but taking into consideration the manner in which this granite had been boxed and covered, and the fact that it appears that the bill of lading had been filled up and prepared by the plaintiff's superintendent, and the term "building granite" had been inserted, the defendant was induced to ship at a lower rate; that the commodity rate should not have been used because it does not apply to granite vaults; that while the plaintiff may have got a commodity rate, it did not ship commodity property; that it shipped fifth or fourth class property, and the plaintiff put a stamp upon the

bill of lading which would have justified the acceptance of this property as rough quarried granite, sixth class, or granite for vault work, sixth class, but by reason of stating it to be building granite the plaintiff did better, and obtained a rate of 18 cents as though it had been building stone, common, plain rough, or rough dressed; that if there was anything knowingly illegal about this method of doing business, in which valuable granite was shipped as if it had been common stone, the parties being in equal fault, the plaintiff is in no position to complain of the amount of the verdict.

It is the further claim of the defendant that the contract expressing the valuation was legal under the laws of Vermont, where it was made, and under the acts of Congress, and also under the laws of this State; that it is not an exemption from liability, but is a fair effort of the parties to ascertain the value to be put upon the property for shipping purposes; that the courts recognize the advantage of a value for shipping purposes, which may not be the same as the real value; that where, as in this case, the shipper has the option of shipping without restriction of value, no one is injured when he undertakes to save some freight by representing his property to be worth less; that it is done every day, and is simply a form of insurance; and that the plaintiff having effectually concealed the real nature and value of its property, for a pecuniary benefit to itself, will not be heard to say now that its contract was in any wise illegal. Chicago, etc., R. Co. v. Kirby, 225 U. S. 155 (32 Sup. Ct. 648).

In any just view of the case as made by the evidence, we are of opinion that the plaintiff is in no position to complain of the amount of the recovery. The representation or acknowledgment by the shipper that there is available to him a higher rate without restriction of valuation is sufficient proof of the fact, but in this case we have the language of the tariffs

giving that unrestricted opportunity. Freeman v. Railroad Co., 138 Mo. App. 322 (122 S. W. 1).

The tendency of the courts is to give effect to these voluntary contracts of the parties in reaching an understanding concerning the relative rate of transportation and value of property reciprocally. The action of the shipper affects the action of the carrier.

Such arrangements are held to be entirely distinct from those other contracts which exempt the carrier from the consequences of his negligence. These are held to be an adjustment beforehand of the damages which may result from negligence; and for that reason such arrangements are held to be good except in the event of gross negligence of the carrier. See Louisville & Nashville R. Co. v. Sherrod, 84 Ala. 178 (4 South. 29); Graves v. Railroad Co., 137 Mass. 33 (50 Am. Rep. 282). In the last-cited case it was held that the shipper was estopped to recover more than the agreed valuation.

A leading case is that of Hart v. Railroad Co., 112 U. S. 331 (5 Sup. Ct. 151), where it was held that the voluntary contract between carrier and shipper, in an effort to decide beforehand the extent of liability in the event of negligence, was a good contract, and was based upon good consideration; the consideration being the opportunity to ship at a lower rate than that called for by the unrestricted basis of shipment.

In Atkinson v. Transfer Co., 76 N. J. Law, 608 (71 Atl. 278), the court said:

"Having taken advantage of the lower rate, * the shipper is estopped from afterwards asserting that the value is greater. To permit him to reap the benefit of a lower rate in case there is no loss, and to repudiate the valuation upon which that rate was based, if there be a loss, would be repugnant to every principle of fair play."

See, also, Perrin v. Express Co., 78 N. J. Law, 515

(74 Atl. 462, 28 L. R. A. [N. S.] 645); Pacific Express Co. v. Foley, 46 Kan. 457 (26 Pac. 665, 12 L. R. A. 799, 26 Am. St. Rep. 107); Humphreys v. Perry, 148 U. S. 627 (13 Sup. Ct. 711); Wunsch v. Railroad Co. (C. C.), 62 Fed. 878.

That the connecting carrier is entitled to the benefit of the limitation of value, see Mears v. Railroad Co., 75 Conn. 171 (52 Atl. 610, 56 L. R. A. 884, 96 Am. St. Rep. 192).

That this limitation as to value has no tendency to exempt from liability for negligence, see Baltimore & Ohio R. Co. v. Hubbard, 72 Ohio St. 302 (74 N. E. 214); Alair v. Railroad Co., 53 Minn. 160 (54 N. W. 1072, 19 L. R. A. 764, 39 Am. St. Rep. 588).

The fact that the receipt is prepared by the shipper, containing a limitation as to value, is evidence of his freedom of contract and his choice of rates. Such a contract fixes the damages, and does not limit the carrier's liability, and is held not contrary to public policy. Mering v. Southern Pacific Co., 161 Cal. 297 (119 Pac. 80); George N. Pierce Co. v. Wells Fargo & Co., 189 Fed. 561, 110 C. C. A. 645.

There was no evidence of gross negligence of the defendant.

We are of opinion that the trial court did not err in directing the verdict and amount of recovery in the case, and there was no error in refusing to submit the case to the jury.

In Adams Express Co. v. Croninger, 226 U. S. 491 (33 Sup. Ct. 148), the United States Supreme Court decided, January 6, 1913, that the intent of Congress to take possession of the subject of the liability of a carrier under contracts for interstate shipment, and to supersede all State regulations with reference to that subject, so clearly appears from the Carmack amendment of June 29, 1906 (Act June 29, 1906, chap. 3591, § 7, 34 U. S. Stat. 593 [U. S. Comp. Stat. Supp.