Wells

It is averred in the complaint that plaintiffs, through their agents Seidenberg & Co., delivered to defendant at the city of New York four certain packages of cigars, of the *687 value of sis hundred and twenty-five dollars which defendant, a common carrier, received and agreed to deliver to plaintiff at the city of San Francisco; that defendant wrongfully and negligently failed to deliver said cigars to plaintiffs, to their damage in the sum of six hundred and twenty-five dollars and interest.

The defendant in its answer denied the averments of the complaint, and also set up a separate defense, to which plaintiffs interposed a general demurrer. Judgment was rendered for plaintiffs for six hundred and twenty-five dollars, which was the full value of the cigars, and defendant appeals from the Judgment, bringing up only the judgment-roll. The question presented is, whether or not the court erred in sustaining the said demurrer.

In that part of the answer to which the demurrer was sustained it is averred that the four packages were received by appellant to be carried and delivered to respondents at San Franaiseo upon the terms and conditions stated in a certain written contract of…

concurring.—I concur in the judgment, but I do not agree that the conditions expressed in the bill of lading amount to an agreement as to the value of the packages. I think the implication is exactly the reverse, to wit, that because the’ value is not stated and is therefore unknown, the carrier will not be liable for loss or damage for any sum exceeding fifty dollars. For this reason this case is not within the cases cited upon this subject by Mr. Justice McFarland.

I do not question the proposition that a common carrier is exonerated by such a stipulation, except in the cases mentioned in section 2175 of the Civil Code. Sections 2175 and 2176 must be read together, and, so read, the law is that a carrier may limit his liability for packages, the value of wdiieh is not stated, except when the loss or damage results from the gross negligence, fraud, or willful wrong of himself or his servant; and for loss or damage so caused he cannot thus exonerate himself.

It may be true that to agree upon the value of the goods to be carried is not to limit the liability of the carrier, and, hence, the materiality of the consideration here. I contend, as already stated, that the agreement…