transporting the goods unless the freight due it should be first paid. When defendant company transported the goods to the nearest connecting line by the usual route to New York, and there offered and attempted to deliver them to such connecting line, to be forwarded to the point of destination, it fully performed its part of the contract, and cannot be held, in the face of its express stipulation to the contrary, liable for any damages occurring "beyond its own rails."

The judgment of this court is, that the judgment of the circuit court be reversed, and that the case be remanded for a new trial.

-

CARRIERS - LIABILITY OVER CONNECTING LINES. —A carrier may, by express contract, confine its liability for negligence to its own line, and make itself simply the agent of connecting lines, so as to exempt itself from liability for the negligence of a connecting line: Harris v. Howe, 74 Tex. 534; 15 Am. St. Rep. 862, and note; Nines v. St. Louis etc. R'y Co., 107 Mo. 475; Peterson v. Chicago etc. R'y Co., 80 Iowa, 92; note to Savannah etc. R'y Co. v. Harris, 23 Am. St. Rep. 558. For an extended discussion of the power of a carrier to limit his responsibility to his own line, see monographic note to Wells v. Thomas, 72 Am. Dec. 231; also notes to Hadd v. United States etc. Exp. Co., 36 Am. Rep. 761; Nashville etc. R. R. Co. v. Sprayberry, 35 Am. Rep. 708; Hill v. Syracuse etc. R. R. Co., 29 Am. Rep. 166; Gray v. Jackson, 12 Am. Rep. 40; Lawrence v. Winona etc. R. R. Co., 2 Am. Rep. 141. The liability of a common carrier is limited to its own route, unless the contract is to carry the goods to their ultimate destination: McConnell v. Norfolk etc. R. R. Co., 86 Va. 248; Rickerson etc. Mill Co. v. Grand Rapids etc. R. R. Co., 67 Mich. 110. See Alabama etc. R. R. Co. v. Thomas, 89 Ala. 294; 18 Am. St. Rep. 119, and note.

SULLIVAN V. SUSONG.

[36 SOUTH CAROLINA, 287.]

AMOUNT OF WORK DONE ASCERTAINED IN MODE DIFFERENT FROM THAT AGREED ON, When Latter MADE IMPOSSIBLE. - Where certain work

of grading for a railroad has been done at fixed prices, under an agreoment that the amount of the work is to be ascertained by a remeasurement thereof, to be made by certain engineers, and that mode of ascertainment becomes impossible without the fault of either party, the amount of the work done may be ascertained from other competent testimony, and the court may base a decree upon such testimony. QUESTIONS OF FACT, CONCLUSION OF TRIAL COURT ON, SUSTAINED BY SUPREME COURT WHEN. - The conclusions reached by the trial court upon questions of fact will be sustained by the supreme court, unless such conclusions are without any testimony to sustain them, or are manifestly against the weight of the evidence.

THE special master to whom the case was resubmitted after the former decision required each of the parties to select a

AM. ST. REP., VOL. XXXI. — 55

competent engineer to remeasure the work done by the plaintiff in grading the railroad. He reported that George W. Earle and W. R. Powell, skillful and competent civil engineers, were so appointed, and that they reported to him the impossibility of remeasuring the work. He therefore reported as a matter of fact that it was impossible to remeasure the work, and held as a matter of law that the plaintiff was entitled to the value of the work done by him for the railroad company, the amount of the work to be ascertained from the evidence, and its value computed according to the stipulations of the contract under which it was done. He ascertained from the testimony offered the value of the work done, and recommended that judgment be rendered for the plaintiff in the sum of $10,518.26, with interest thereon. To this report the following exceptions were filed: 1. Because the referee erred in finding as matter of fact that a remeasurement of the work is impossible; 2. Because he erred in finding as a matter of law that the value of the work done was to be computed according to the stipulations of the contract under which the work was performed, to wit, the original contract between plaintiff and the railway company; 3. Because he erred in holding that the plaintiff was remitted to his original contract between plaintiff and railroad company; 4. Because he erred in decreeing judgment against the defendant in the sum of $10,518, with interest and costs; 5. Because he erred in not holding and decreeing that the plaintiff should first refund to the defendants the cash payment made him by them before he could be remitted to his rights under his original contract with the railroad company; 6. Because he erred in not holding as a matter of fact that the engineers, Earle and Powell, had not resurveyed and remeasured the work as ordered, but had reported that it was doubtful if remeasurement and survey could be completed by the 10th of September, 1889; 7. Because he erred in not holding that the said engineers had not attempted to remeasure the whole work, but only a part; 8. Because he erred in not holding that the said engineers, or others to be selected in their stead, should proceed to remeasure and resurvey the whole work on said railroad and make report to him, said referee, before he could consider and deeide the case. The circuit judge overruled the exceptions, confirmed the report in all respects, and rendered the judgment recommended therein.

W. C. Benet, for the appellant.

Henderson Brothers, contra.

McIVER, C. J. This being the second appeal in this case, it is unnecessary to make any statement of the nature of the case or of the facts, as they may be found fully set forth in the report of the former decision, in 30 S. C. 305.

In accordance with the former judgment of this court, the case was recommitted to the special master, who, as directed by the former decision, required the parties each to select a competent engineer to remeasure, if practicable, the work done by the plaintiff in grading the railroad. These engineers proceeded to examine the work, made their report to the special master, upon which they were examined as witnesses, and the special master, upon that testimony, all of which is set out in the case, together with the testimony previously taken in the case, which was authorized to be used on the present hearing, reached the conclusion that it was now impossible to remeasure the work, and therefore the plaintiff was remitted to his original rights, which he held were to be paid for the work which he actually did under his contract with the railroad company according to the scale of prices therein stipulated, and having determined the value of the work thus done, he ascertained the balance due to the plaintiff to be the sum of $10,518.26, and he therefore made his report, embodying the views thus briefly stated, and recommended that the plaintiff have judgment against the defendants for the said balance, together with costs and disbursements, except the cost of the attempted remeasurement, which, by their agreement, is to be divided equally between the plaintiff and the defendants; making provision, also, that when the judgment is paid the plaintiff shall turn over to the defendants all of the uncollected notes held by him as collateral security.

To this report the defendants filed numerous exceptions, which are set out in the case, and the case came before his honor Judge Fraser for a hearing upon the report and the exceptions, who rendered judgment, confirming the report in all respects, and from this judgment defendants appeal upon the several grounds set out in the record, which are substantially the same as the exceptions to the report of the special master. Under the view which we take of the case, we do not deem it necessary to state these grounds specifically, though they, together with the report of the special master

and the decree of the circuit judge, should be incorporated in the report of the case.

According to our view, every question which was or could have been made in the case was concluded by the decree of Judge Pressley, affirmed by this court, except two, and they were questions of fact merely. There can be no doubt that the plaintiff did certain work for which the defendants had, by their contract, agreed to pay, at the rates fixed by the contract between the plaintiff and the railroad company; and the only question between the parties was as to the amount of such work, which it was agreed should be ascertained by a remeasurement by competent engineers, selected by the parties respectively. But when the mode of ascertaining the amount of the work agreed upon by the parties became impossible, through no fault of either of them, as had been found to be the fact, then, as the circuit judge very properly says, it would amount to a denial of justice to hold that the amount of the work should not be ascertained in some other way. It seems to us, therefore, that the only questions remaining in the case are: 1. Whether a remeasurement was impossible; and if so, 2. Whether the testimony before the special master was sufficient to sustain his conclusion as to the amount of the work done by the plaintiff. Both of these questions being questions of fact, under the well-settled rule we would be bound to sustain the concurrent finding of the special master and the circuit judge, unless their conclusions are without any testimony to sustain them, or are manifestly against the weight of the evidence.

It certainly cannot be said that there is no testimony to support the conclusions of the special master and circuit judge as to either of these questions; and the only inquiry therefore is, whether they are manifestly against the weight of the evidence. In view of the lapse of time, and the undisputed testimony as to the condition of the road-bed, — washed, ditches and cuts filled in, plowed over, miles of it in crops, used and worked upon in portions as a public highway, — we are quite prepared to agree with the special master that a remeasurement was practically impossible, and that if attempted, it would amount largely, as one of the witnesses said, to "pure guess-work." The fact that the engineers last appointed to make the remeasurement speak of the difficulty of doing the work assigned them within the time limited amounts to nothing, in view of the further fact that before the expiration of the

time allowed they had made a sufficient examination of the work to satisfy them that a remeasurement, with anything approaching to accuracy, was impracticable, and if attempted, would amount largely to guess-work.

If there was no error in finding that a remeasurement was impossible, the only remaining inquiry is, whether there was any testimony to sustain the conclusion reached by the special master as to the amount of the work done. The most casual examination of the testimony set out in the case will show that there was such testimony, and we cannot say that the conclusion reached was manifestly against the weight of the evidence.

The judgment of this court is, that the judgment of the cir cuit court be affirmed.

CONTRACTS. CONDITIONS PRECEDENT NECESSARY PERFORMANCE OF: See note to Oakley v. Morton, 62 Am. Dec. 54; also notes to Patterson v. Gage, 56 Am. Dec. 98; McKinney v. Springer, 54 Am. Dec. 479; and Butterfield v. Byron, 25 Am. St. Rep. 660. Where the continued existence of the means of performing a contract is essential to its performance, and there is nothing to indicate a substituted performance as within the design of the parties, such continued existence of such means is a condition without which, in the absence of fault, there can be no liability: Shear v. Wright, 60 Mich. 159.

APPEAL FINDINGS OF FACT — DISTURBANCE ON. Where the evidence upon the trial of an issue of fact is conflicting, the decision of the trial court thereon will not be disturbed by the supreme court, if it believes it to be warranted by the testimony: Alabama etc. R'y Co. v. Bolding, 69 Miss. 255; 30 Am. St. Rep. 541, and note with cases collected.

JORDAN V. NEECE.

[36 SOUTH CAROLINA, 295.]

DEED-WORDS IN, SUFFICIENT TO CONVEY ESTATE IN LAND. -The following words in a deed from a grantor to a grantee, made in consideration of love and affection, are sufficient to convey an estate in the land, and operate to convey such an estate, and do not create a copartnership be tween the parties thereto: "Do give and release unto him so much land at, along, below, and above the mill-dam upon my land, known by the name of the Mill's Old Dam, and adjoining his, as will serve for the purpose of cutting a race, and for waste-way and mill, all conveniences in putting up same and lumber-yards, also free ingress and egress to and from said mill or pond through my lands, and also of backing water upon my land to the height of thirteen feet live water, and all the privileges of said mill two thirds of the time, reserving to myself one third part of said mill after paying one third part of whatever amount it may cost him in putting in operation said mill."