1. This is the second appearance of this case before this court. See 124 Ga. 472. As ruled then, the action is for damages arising from breach of contract, and not for damages arising from a tort. Upon no other theory was it held that the venue was properly laid in Chatham county. By paragraph 4 of the plaintiff’s declaration it is, among other things, alleged: “That on the 22d day of January, 1904, petitioner shipped from Dublin in said State, via the Macon, Dublin & Savannah Bailroad, to Yidalia, the point at which it connects with said defendant’s line of road, a car of cattle consigned to petitioner at Savannah, Chatham county, Georgia; that said defendant received said car of cattle in the afternoon or early evening of January 22, 1904, in good order from said Macon, Dublin & Savannah Bailroad Company, and then and there undertook to ship and transport the same to Savannah, with reasonable dispatch and care, and there deliver said cattle to your petitioner in good order.” It is not alleged anywhere, in the declaration, that any written contract was executed. Hence the contract declared upon is only such as the law implies from a mere delivery of goods by any person to a railroad company to be carried as freight to a designated place. The entire undertaking upon the part of the defendant in this case, so far as the record discloses, is expressed in the last part of the foregoing excerpt, where it is said: “And then and there [referring to Yidalia] . undertook to ship and transport the same [referring to the car-load of cattle] to Savannah, with reasonable dispatch and care, and there deliver said cattle to your petitioner in good order.” This states the contract and is the gist of the entire averment on this point. Under this declaration, it was after the goods were received by the defendant at Yidalia that the contractual relations between the plaintiff and the defendant began, and not before. The plaintiff proceeds upon the theory that the shipment from Yidalia was initial, and does not invoke the rules of law governing the interchange of freight between connecting carriers. Bor a recovery the plaintiff will be restricted to the contract which he pleads. Under the law and the contract as pleaded, the defendant will be liable to the plaintiff for any damage resulting from injury to the goods caused through the negligence of the defendant’s servants after the goods *318were received by the defendant, and not before. For the purpose of delivery of the goods to the defendant at Yidalia, the Macon, Dublin & Savannah Eailroad Company was the agent of the plain-' tiff. Georgia R. Co. v. Murrah, 85 Ga. 347; Bird v. Georgia Railroad, 72 Ga. 655. See also Goodin v. Southern Railway Co., 125 Ga. 630; 5 Am. & Eng. Ann. Cas. 573.
2. In proving delivery of the car-load of cattle to the defendant 'at Yidalia for transportation to Savannah, in accordance with his ■pleadings, the plaintiff relied upon the agency of the Macon, Dublin & Savannah Eailroad Company. From the evidence it appears, that the Macon, Dublin & Savannah Eailroad Company owned and maintained a special railroad track which was known as the “transfer track;” that the prevailing custom for the delivery of ears by "that company to the defendant was simply to place on the “transfer track” the car intended to be delivered, whereupon the train crew of the next train of the defendant, going in the direction of •the car’s destination, would, upon finding the car on such “trans.fer track,” take it therefrom, attach it to the defendant’s train, and •carry it over the defendant’s main line. In this instance the evidence disclosed that in pursuance of this custom the car was placed upon the “transfer track” by the employees of the Macon, Dublin ■& Savannah Eailroad Company, in the afternoon, to await the. coming of the first train of the defendant going in the direction of .Savannah, which was due about 5 o’clock the next morning. The .same person was station agent for both railroads at Yidalia, but the evidence does not show that he knew of the placing of the car •on such track, or that he or any other agent of the defendant ac- • cepted it for the defendant. Under these conditions, the mere placing of the car on the “transfer track” was not a delivery to the defendant. Under the custom proved, and in the absence of some affirmative act by some authorized agent of the defendant, amounting to an acceptance of the car, the placing of the car on the “transfer track” was a mere tender; and delivery thereof would not be complete before it was actually accepted by the train crew of the ■defendant’s road, to carry it upon its route. . •
3. In the first division of this opinion it was noted that the plaintiff declared upon an implied contract, and that his right to recover would be restricted to that particular contract. The defendant’s answer was a mere denial of the plaintiff’s allegation, and did *319not suggest the existence of a different contract concerning the same transaction. No special plea was filed. The defendant did not seek an abatement of the plaintiff’s suit upon the ground that .he had declared upon a contract different from that under which ■the transportation was really undertaken. But it appears that on '.the trial the defendant introduced such a contract, which, so far .as the record discloses, was admitted in evidence without objection. 'That contract contained certain stipulations tending to limit the .liability of the carrier, referring to the computation of damages in ■cases,of injury to freight, and imposing upon the consignee the ■duty of making a written claim for damages within a specified time. The defendant, in one of the grounds of his motion for new trial, ■complains that the court, without written request so to do, failed do charge the jury that it was the indispensable duty of the consignee to make the written demand for damages in accordance with the provisions of the contract. In another ground of the defendant’s motion for a new trial complaint is made because the judge, in his instructions to the jury, in effect submitted to them the question as to whether or not the shipment over the defendant’s road was by virtue of the written contract, and instructed them that if they should find that it was by virtue of the written contract, it would be their duty, in computing the damages, to be governed by the market price at the place of shipment, rather than at the place of destination, but if they should not find that the transportation, was by virtue of the written contract, the market price at the place of destination would apply. The criticism was to the effect that the court should not have submitted these questions to the jury, but, under the undisputed evidence, should have instructed the jury that the written contract did apply; that the court should have construed the contract and should have instructed the jury that the market price at the place of consignment would apply in the computation of damages. We do not think that there is anything in these grounds of the defendant’s motion for new trial which’will require a reversal of the judgment for the reasons assigned. In the absence of appropriate pleadings, the relevancy of the written contract, for the purpose relied upon by the defendant, does not appear. Its introduction in evidence, so far as the defendant is concerned, tended only to confusion. The fact that it was admitted without objection would not require the court to deal with it in a manner not author*320ized by the pleadings. Any error complained of which the court may have made with respect thereto was foreign to the issues before the court, and should not require the grant of a new trial.
4. The general grounds of the motion for new trial, and the ground that the verdict was excessive, are meritorious. It will be borne in mind that the defendant is responsible only for the damage which accrued after the car was received by it for transportation. The plaintiff, in his declaration, laid his principal damages at $405, and claimed interest and attorney’s fees. His damages were charged upon the basis of the animals being in good condition at the time of delivery to the defendant. His damage on account of the loss of the animals which died was laid at their full value; and his damage on account of the injury to the animals which did not • die, at a partial loss. His claim contemplated substantial injury to all of the animals. The verdict was in his' favor for the exact principal sum alleged to be due, without interest and without attorney’s fees. In order to sustain this fpll recovery of the amount of damages alleged in the petition to have accrued, it must appear that none of the injury complained of had occurred before the defendant received the car; because the plaintiff makes claim for them as having been in good condition at that time, and makes no allowance for any injury which may have been received beforehand. Upon this point the evidence does not sustain the finding. ■ It affirmatively appears, without contradiction, that immediately after the arrival of the car in the afternoon at Vidalia, and before it was placed on. the transfer track, the cattle were found to be in bad condition, and three of them so badly injured as to be down and unable to stand; that with them in such condition, the employees of the Macon, Dublin & Savannah Eailroad Company caused the car to be placed upon the transfer track, where it was intended by that company they should remain until about five o’clock the next morning, to await the coming of the first scheduled train on the defendant’s line of road, then to be taken and carried to Savannah. The defendant’s train arrived the next morning on time, and, upon finding the car, the train crew removed it from the transfer track to the defendant’s main line, and attached it to the defendant’s train to be carried to Savannah, but the conductor immediately discovered the condition of the animals, refused to take the car, and put it back upon the transfer track. Very soon after it was returned *321to the transfer track, the -employees of the Macon, Dublin & Savannah Railroad Company caused the animals to be taken out of the car; at which time five or six of them were found to be dead, and others in bad condition. There was in the evidence nothing to indicate the amount of injury which had been sustained by the animals' before the defendant received them, or the amount of damage arising from such injury, but it is manifest that the damage was substantial and considerable. The evidence of such substantial injury demanded that the verdict be less than what it might have been had the animals been in good condition at the time they were received by the defendant. But the verdict for the full principal sum claimed covered the entire injury, and was therefore excessive and contrary to the evidence.
