Page:Federal Reporter, 1st Series, Volume 7.djvu/642

 630 FSDEBAt. BEFOBTEB. �be maintained. There is a clear distinction between a war- ranty and a fraudaient misrepresentation. The former is a contract, and the action upon it is au a,ction on contract. It js an action which can be maintained only by a party to the contract. The latter is a fraud, a wrong, for which an action ex delicto lies in favor of the person injured. �We conclude that the plaintiff can recover upon the facts stated in the first count upon proving the intent to defraud by executing the certificates and placing them upon the mar- ket, but he cannot recover alone upon the facts stated in the second count. The demarrer is overruled as to the first count and sustained as to the second. �LovB, D. J., concurs. ���Habt V. Pennstlvania E. Co. (Circuit Court, E. D. Missouri. April 6, 1881.) �1. CouMOK Carrier— Bill op LADmo— Limitino Liability. �A common carrier may, by having a shipper sign a bill of lading flxing the value of property shipped at the amount it is willing to be liable for, limit its liability to that amount in case of losa in conse- quence of its gross negligence. �2. Same. �Where five horses, some saddies, etc., were shipped by rail, and the bill of lading was signed by both the carrier and shipper, and pro- vided, among other things, " that the carrier assumes a liability on the stock to the extent of the following agreed valuation : If horses, tered car, on the stock or contents in same, not exceeding ttoelve hundred dollars for the car load ;" and through the carrier's gross negligence one of the horses, alJeged to have been worth $15,000 was killed, the others injured, and the saddies, etc., lost: Held, in a suit by the shipper for damages, that his recovery could not exceed the amount fixed in the bill of lading. �Plaintiff shipped five valuable race-horses, some saddies, etc., on a car of defendant, for transportation from Jersey City, New Jersey, to St; Louis, Missouri. The bill of lading received by him contained the following printed condition, viz. : "That ��� �
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