the above mortgage was commenced, in the following terms, to wit:

"*** The same being the tract of land whereon is built and located the cotton factory building and other structures thereto appertaining and including all the land and messuages owned or occupied by the said Sumter Cotton Mills at the time of the commencement of this action in and near the corporate limits of the city of Sumter, in the said county and State, whether particularly or accurately above described or not."

"And also all and singular every manner of the property, real, personal, and mixed, constituting the entire plant of the said defendant, Sumter Cotton Mills, owned, operated, or possessed by the said defendant, at the time of the commencement of this action ***" (the action referred to being the foreclosure of the above mortgage).

In 13 Cyc. 630, it is said: "Where property is described as the whole of a certain tract, the fact that the courses and distances by which the property is described do not include the whole tract will not prevent it from passing." Keith v. Reynolds, 3 Me. (3 Greenl.) 393. The cotton mill expressly stated its intention to mortgage all of its property, real and personal, in the said mortgage by the general description which in substance and effect was incorporated in the general description of the master's deed to the plaintiff, Richard I. Manning. In 13 Cyc. 637: "The question as to what property passes by a deed may be controlled by a general. clause conveying all of the grantor's property. The construction of a description with such a clause therein is dependent upon the intention of the parties, and where it appears from the entire deed that it was the manifest intention to convey all of the property of the grantor, a construction consistent therewith will be given. In construing a

clause of this character the rule applies that the language is to be construed against the grantor."

Since the one-acre tract of land in question is separated by the said public road from the city of Sumter to Cain's Savannah, (the same as Council street) from the 15-acre tract, and was owned by the said Sumter Cotton Mills at the time of executing the above mortgage, I am, therefore, bound to hold that it was included in the description contained in the above mortgage of the Sumter Cotton Mills to R. M. Wallace and others, trustees, and that when the deed of E. C. Haynsworth, master, was executed to Richard J. Manning pursuant to the foreclosure of the said mortgage, the description of the property conveyed thereby was adequate to vest a marketable title to the one-acre tract of land, in question, and first above described, in the plaintiff, Richard I. Manning.

For the reasons above stated in determining the first and second questions, the third question must necessarily be determined in the negative.

It is, therefore, ordered, adjudged, and decreed that upon tender by the plaintiff to the defendant of his deed, with covenant of general warranty, conveying said premises to the defendant in fee simple absolute, that the defendant do specifically perform his contract of purchase according to its terms and provisions as set forth therein.

Mr. George D. Shore, Jr., for appellant, cites: Mortgage and deed giving road as a boundary covers and conveys to the middle of such road: McMull. Eq. 289; 1 McC. 584.

Mr. R. Dozier Lee, for respondent.

January 31, 1921.

The opinion of the Court was delivered by MR. CHIEF JUSTICE GARY.

For the reasons therein stated, the judgment of the Circuit Court is affirmed.

MR. JUSTICE GAGE did not participate.

10558

POLIAKOFF v. AMERICAN RAILWAY EXPRESS CO.

CARRIERS

(105 S. E. 745.)

WHETHER PLAINTIFF SHIPPER ENTERED INTO CONTRACT EMBODIED IN RECEIPT A JURY QUESTION.-In an action against an express company for failure to deliver a shipment from plaintiff to consignee, whether plaintiff entered into the contract embodied in the receipt limiting recovery issued by defendant held for the jury.

Before BOWMAN, J., Barnwell, April term, 1920. Affirmed.

Action by S. Poliakoff against American Railway Express Company. From judgment for plaintiff, the defendant appeals.

The exceptions herein are as follows:

(1) That his Honor erred, it is respectfully submitted, in refusing defendant's motion for a directed verdict for any. amount in excess of $50, on the ground that under the express receipt the liability of the defendant company, in case of loss, was limited to $50, and no more; the amount being based upon the rate charged and weight.

(2) That his Honor erred, it is respectfully submitted, in failing to charge the jury at the request of the defendant as follows: "I charge you, gentlemen of the jury, that if the

plaintiff is entitled to recover in this case, that he cannot recover an amount in excess of $50, for the reason that he agreed to this valuation at the time the shipment was turned over to the express company by failing to have the agent insert in the express receipt a greater value than $50, and in not paying an increased rate for a higher valuation." In that the amount to be recovered was limited by the express receipt in case of loss and was the contract between the parties.

(3) That his Honor erred, it is respectfully submitted, in allowing the witness, Poliakoff, to answer the following question over the objection of defendant's attorney:

"Q. At the time that you sent it back did you tell them what was in the package? Mr. Blatt: If the Court please, the express receipt is the best evidence. Witness: It was marked on the package to the Knickerbocker Clothing Company and that it meant it was clothing, of course. Mr. Blatt: We object to the witness stating all of that. The express receipt is the best evidence and we think the Court ought to make counsel produce it. We object to it. The Court: Go ahead, Mr. Ninestein, we will strike it out later if we find it is not proper."

In that it attempted to allow the plaintiff to testify as to the valuation of the package, and allow the plaintiff to vary and contradict the terms of the express receipt, which was the only contract between the parties.

(4) That his Honor erred, it is respectfully submitted, in allowing the witness, Poliakoff, to testify as to the value being placed on the package at the time it was delivered to a negro porter, employed by the agent as a driver, for shipment, in that it attempted to vary and contradict the terms of the express receipt and in attempting to place a value on

the package other than that which was stated in the express receipt.

(5) That his Honor erred, it is respectfully submitted, in charging the jury as follows: "The plaintiff must make out his case by the preponderance or greater weight of the testimony. It is on the express company to show that the agreement was made. That is the burden on them." In that it misled the jury and made them believe that under the law the express company, defendant in this case, would have to establish this agreement by the greater weight or preponderance of the testimony, when, as a matter of fact, the burden of proof was upon the plaintiff to establish by the greater weight or preponderance of the testimony that the valuation was the amount as alleged by them in their complaint.

(6) That his Honor erred, it is respectfully submitted, in failing to direct a verdict for the defendant for any amount in excess of $50, in that under the law and testimony as was had at the trial of the case, the defendant was entitled to a direction of a verdict for any amount other than that covered by the contract between the parties, which in this case was the express receipt, and which limited the amount to be recovered in case of loss to $50.

Messrs. Harley & Blatt, for appellant, cite: Presumed that rate is proper and lawful: 237 U. S. 94. Bill of lading and filed tariffs conclusive as to damages recoverable: 227 U. S. 639; 241 U. S. 319; 61 L. Ed. (U. S.) 990; 244 U. S. 58; 96 S. E. 712. Acceptance of receipt established a prima facie agreement to limit liability: 100 U. S. 24; 25 Am. St. Rep. 660. And became binding on plaintiffs 96 S. E. 713; 242 U. S. 148; 244 U. S. 58. Presumption that carrier is conducting business lawfully: 242 U. S. 148. Shipper

should not be allowed the benefit of a lower rate and demand