Earl, C.

The plaintiff, in its complaint, bases its right to recover solely upon a cause of action alleged to have been assigned to it by L. Roberts & Co., and it must upon this appeal, as it did upon the trial, stand by the theory of its complaint. It was admitted upon the trial that the wheat was damaged by water on the way to Fort Plain, before delivery, while in possession of the defendant as carrier. It was not proved how the damage was occasioned, nor that it resulted from any cause which would excuse the defendant from its liability as common carrier. Hence sufficient appeared to establish the liability of the defendant. If it claimed that the wheat was damaged from inevitable accident, the burden was upon it to show it. (Angell on Car., §§ 188, 202, 472; King v. Shepherd, 3 Story Cir. Ct. R., 349; Hawkes v. Smith, 1 Car. & Marsh. R., 72.)

It is only necessary further to inquire whether the defendant was discharged from this liability by the delivery and receipt of the wheat at Fort Plain or the alleged settlement made in New York.

1. It is claimed that L. Roberts & Co. voluntarily received the damaged wheat at Fort Plain, and that this discharged the defendant from all liability for damage to the wheat, and this claim is sought to be sustained by The Case of the Propeller Mohawk (8 Wal., 153). In that case Judge Nelson, after stating that in case the disaster to the cargo happened in consequence of one of the perils within the exception in the *97 bill of lading, it is perfectly well settled that if the shipper voluntarily accepts the goods at the place of the disaster or at any intermediate port, such acceptance terminates the voyage and all responsibility of the carrier, and that the master is entitled to freight jpro rata itineris, further states as follows: “ The same rule as it respects the effect of the voluntary acceptance of the goods at the place of the disaster or intermediate port applies in case the ship is disabled or prevented from forwarding them to the port of destination by a peril or accident not within the exception in the bill of lading. The only difference between the cases is that inasmuch as in the latter the vessel is responsible for all damages that have resulted from the misfortune to the cargo, the proofs of the acceptance of the goods at the intermediate port, in order to operate as a discharge of the vessel, should be clear and satisfactory. The mere acceptance in such cases, and nothing else passing between the parties, ought not to preclude the shipper of his remedy. It should appear from the evidence and circumstances attending the transaction that the acceptance was intended as a discharge of the vessel and owner from any further responsibility; what would be equivalent to a mutual arrangement, express or implied, by which the original contract in the bill of lading was rescinded. The ground of the exemption from responsibility of the vessel in both cases is the voluntary acceptance of the goods at the intermediate port.” After thus laying down the law, the learned judge reaches the conclusion upon the evidence that the acceptance of the goods in that case at the place of the disaster was voluntary, and with intent to discharge the carrier from all liability.

Here there was no such acceptance. All parties were notified of the detention of the boat and the disaster to her cargo. The general agent of the defendant at Hew York telegraphed to the insurance agent of the plaintiff, at Fort Plain, to take entire charge of the cargo of wheat “ for' account of whom it may concern.” In pursuance of this telegram, the insurance agent, with the knowledge and consent of the defendant, *98 took the wheat from the boat, sold the damaged wheat and stored the balance in a storehouse. In the spring the sound wheat was delivered from the storehouse upon an order of the defendant, and taken by it and carried to Hew York in fulfillment of the original contract to carry it, and was there delivered to L. Eoberts & Co., the consignees. Here there was positively nothing to indicate that the consignees or the insurance company, the plaintiff, intended at Fort Plain to discharge the defendant from liability for the damage to the wheat. The defendant certainly did not understand that its original contract in its bill of lading was rescinded because it took the wheat in the spring "and carried it to its destination under that bill of lading. It would be quite preposterous to hold that because the insurance agent took possession of the wheat at the request of the defendant and with the consent of the consignees and the insurance company, for the benefit of all parties interested, such acceptance, without more, should operate to discharge the defendant from its liability as carrier. To work such a result the proof should be quite clear and satisfactory. The defendant did not ask to be discharged; and what reason could have induced the consignees or the insurance company voluntarily to discharge, without any consideration or compensation, a liability which seems to be undisputed for nearly $2,000 ?

The defendant is without any finding from the referee that the wheat was accepted at Fort Plain with intent to discharge the defendant. But he found simply that the consignees abandoned the wheat to the plaintiff as insurer thereof, and the latter took possession thereof with the consent of the defendant. In support of the judgment we must assume that the referee found, as he was authorized to upon the proof, that the acceptance was without any intent to discharge the defendant. The only effect, therefore, of the acceptance of the damaged wheat at Fort Plain was to enable the defendant, as carrier, to charge yro rata freight upon it, and it did not discharge it from the liability sought to be enforced in this action.

*99 2. It is further claimed that the defendant maintained upon the trial of this action its defence of settlement. It was proved that after the delivery in New York of the sound wheat, a clerk of the consignees and an agent of the defendant settled for the freight and towing, and that upon such settlement a deduction was made from freight due the defendant for deficiency in quantity of wheat delivered, and also “ fifty dollars for general average.” This settlement was made between two persons who knew nothing about the extent of the damage to the wheat, and without any figures or data from which they could ascertain the damage. It does not appear that the ampunt or extent of damage was talked over. While it is quite improbable that the fifty dollars was allowed and agreed upon as a satisfaction for the damage, amounting to nearly $2,000, it does not satisfactorily appear what it was allowed for. Defendant’s agent testified that it was allowed for the entire damage to the wheat. The clerk of the consignees testified that it was not allowed for that, but that it was a customary deduction in all settlements for freight in such cases, and he was confirmed as to the custom by the testimony of an insurance adjuster. But there is probably some mistake about it. The blank policy which I find in the case provides that, in case of loss, the insurer shall pay to the insured the whole amount of loss to the amount insured, “ deducting in all cases, instead of average, fifty dollars on losses on wheat and other grain.” This deduction would in all cases fall upon the assured as his contribution toward the loss. It was this rule of deduction which the parties probably attempted to apply in this settlement. But by mistake they took the fifty dollars out of the carrier instead of the assured, and the result is that after allowing the fifty dollars as a deduction from its freight, the carrier is still adjudged to pay the full amount of the damage. There can be no usage or custom which tolerates or sanctions this. The judgment against the defendant in this case is, therefore, probably too much by fifty dollars, but we cannot rectify the mistake, as the allowance of the fifty dollars was not claimed in the answer *100 nor upon the trial, and there is no exception which brings the question before us.

The evidence as to the settlement is quite vague- and uncertain. To establish a settlement of so large a sum by the payment or allowance of such a small amount, it should have been clear and satisfactory. It is enough for us that the referee found that the claim made in this action was not included in the settlement. His finding upon this question is conclusive.

I therefore reach the conclusion that the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.