compress company for the purpose of being compressed, a common carrier issues a bill of lading binding himself to transport it to a place designated, it cannot be regarded as "in transit," or "in depot" while it remains on the platform of the compress company.

CONTRACTS, CONSTRUCTION OF.-PUNCTUATION is a most fallible standard by which to interpret a writing, but it may be resorted to when other means fail.

Coke & Coke, for the plaintiff in error.

Alexander Clark & Hall, for the defendant in error.

424 GAINES, C. J. This suit was brought by the plaintiff in error against the defendant in error to recover the value of fifty bales of cotton. The cotton was bought by J. H. Brown & Co. and was placed upon the platform of a compress company at Honey Grove, Texas, for the purpose of being compressed. While it was still in possession of the compress company, and upon its platform, the defendant in error executed to Brown & Co. a bill of lading therefor, in which, upon certain conditions, it hound itself to transport the cotton to Manchester, New Hampshire. After the execution of the bill of lading, and while the cotton still remained upon the platform, it was destroyed by fire. It was admitted upon the trial that at the time of the loss the cotton was the property of the plaintiff. The trial court found that the fire was not the result of the negligence of the defendant company, and held that, by reason of certain stipulations in the bill of lading which restricted its liability as to common law, the defendant was not liable. The judgment of the trial court was affirmed by the court of civil appeals.

The errors assigned in this court are: 1. That it was error to hold that under the bill of lading the defendant was exempted from liability for the loss of the cotton while at the compress; and 2. That the evidence was not sufficient to show that the cotton was not destroyed through the negligence of the defendant.

In our view of the case, the determination of the first assignment renders a decision of the other unnecessary. Omitting so much as has no bearing upon its construction, the special provision in the bill of lading reads as follows:

"The packages aforesaid [the cotton] must pass through the custody 425 of several carriers before reaching their destination, and it is understood, as a part of the consideration for which said packages are received, that the exceptions from liability made by such carriers respectively in their several bills of lading for through freight shall operate in the carriage by them respectively of said packages, as though herein inserted at length; and espe

cially that neither this company, nor any of said carriers, while in transit, or while in depot or place of transshipment, or of landing at place of delivery, shall be liable. . . . for loss or damage to hay, hemp, cotton."

In order to sustain the ruling of the court of civil appeals and of the trial court, it must be held that the cotton while upon the platform of the compress company was either "in transit" or "in depot" within the meaning of these terms as used in the bill of lading. The rule is elementary that, if a written contract, when viewed as a whole and in the light of the attendant circumstances, reasonably admits of two constructions, that one is to be adopted which is least favorable to the party whose language it is. To no class of contracts has the rule been applied with more stringency than to those in which common carriers seek to limit their liability as it exists at common law. In general, not only are the bills of lading drawn by the carrier and tendered to the shipper to be accepted by him without alteration, but they are also executed upon forms prepared for the purpose of protecting the interest of the carrier, with all the care and ability which experience in the business and professional skill can bring to bear upon the subject. The rule does not require that a strained construction should be put upon the contract of shipment, in order to favor the shipper; but rather, that in case of a reasonable doubt as to which of two constructions best accords with the intent of the parties, that should prevail which is least favorable to the carrier.

Was the cotton while on the compress platform "in transit," within the meaning of the bill of lading? It is contended upon the one side, that the words "in transit" are the equivalent of the words "in transitu," and that goods in the hands of a carrier are in transit from the moment of delivery to the carrier until they reach the hands of the consignee. In sense, the meaning of the two phrases is the same; the one is a literal translation of the other; but as actually employed they have a materially different meaning and application. "In transit" means literally, in course of passing from point to point, and such is its common acceptation. Such, also, is the literal meaning of the phrase "in transitu"; but, for the sake of convenience in defining the right of a creditor to stop goods which have been sold but not delivered to an insolvent purchaser, they have been given a broader technical signification. It may be doubted whether the phrase is ever used in our language in any other connection. It would seem, therefore, that if the parties to the contract in question had desired to employ a single phrase which would cover the carrier's exemption

from liability from the time the goods were received by it until it had delivered them to the consignee, they would have used the more comprehensive terms. Had they done so, a more difficult question 426 would have been presented. But here the words "in transit"-the words actually used-according to their ordinary signification, apply only to the cotton from the time the transportation was to begin until the time it was to end under the contract. The cotton, not having been set in motion toward its destination, was not in fact in transit, and we cannot hold it constructively in transit while on the platform without unwarrantably extending the meaning of a well-defined word and doing violence to a well-established canon of construction. Our interpretation of the word is strengthened by the fact that, in addition to exemption while in transit, the contract also provides that the company is not to be liable for loss of the cotton while in depot or place of transshipment or of landing at place of delivery. If the words "in transit" are to be given the broad construction contended for, then this additional provision is unnecessary. It is to be presumed that the express provision, that the company was not to be liable for loss while in depot or place of transshipment or of landing at place of delivery, was incorporated for a purpose, and the inference is strong that the purpose was to supply that which would have been wanting without it. In the absence of the well-recognized rule of construction applicable to these contracts, we should be constrained to hold that the phrase "while in transit" did not exempt the company from the loss of the cotton before the transportation actually began; and, in any event, there is such grave doubt as to the construction of the phrase as would require that the doubt should be resolved in favor of the shipper. The question has been passed upon in two cases, in both of which the ruling was in accordance with our view: Deming v. Merchant's Cotton press etc. Co., 90 Tenn. 310; Menzell v. Railway Co., 1 Dill. 531.

We come, then, to the question, Was the cotton "in depot" within the meaning of the contract, when it was destroyed? The clause in which the words quoted are found admits of two constructions--one as if it read "or while in depot, or while in place of transshipment"-the other as if the words were "while in depot or transshipment or place of transshipment." If the former be the correct rendering of the clause, then the company would not have been liable for the loss of the cotton while at its depot at the initial point of the carriage; and we would have the question whether the com

press platform should be deemed a depot within the meaning of the contract. But we think the latter the better construction: The words "depot" and "place" stand in close connection, being separated only by the disjunctive conjunction, and, by a strict grammatical construction, occupy precisely the same relation to the other words of the clause. If it were intended to say depot or other place of transshipment, the words accurately expressed the idea, and no others are necessary to be supplied. But if it were intended to mean any depot, then, to express fully and accurately the meaning, we must insert the words "in" or "while in" before the word "place." In addition, the punctuation supports our construction of the language. If there had been a comma after the word "depot," it would have indicated that it was the purpose to detach that word from those next succeeding and to render 427 it independent of and unqualified by them. But the instrument, though in print, as appears from a fac-simile found in the transcript, and though carefully and correctly punctuated, has no comma at the place indicated. This we think tends to show that it was intended that the word "depot" should be qualified by the subsequent words in the clause, and that only depots of transshipment were meant. The supreme court of the United States say that "punctuation is a most fallible standard by which to interpret a writing," but "it may be resorted to when all other means fail": Ewing v. Burnet, 11 Pet. 41. It would seem that the clause in question was inserted with a view to meet the decision in Menzell v. Railway Co., 1 Dill. 531, in which Judge Dillon held that the words "in transit" in a similar bill of lading did not exempt the carrier from liability for the goods while in its depot at a place of transshipment.

It may be true that no satisfactory answer can be given to the question why the defendant should limit its liability from the very moment the transportation began until the delivery of the cotton to the consignee, and it should omit to limit it at its receiving depot. It may be that its intention was to make its exemption general and to contract that it should not be liable for the loss of the property either while in transit or while at the place it was received or a place of transshipment or the place of delivery. But that is not the question. The inquiry is, Did it so express that intention that the shipper, upon the inspection of the bill of lading, should have seen that it admitted of no other reasonable construction? As has been seen, we are of the opinion that the question must be answered in the negative and the maxim, "Fortius contra proferentem," must apply.

The case having been tried without a jury, the trial court found the facts, and his conclusions in that respect are not controverted. The value of the cotton was fixed by the agreement of the parties at the trial. Accordingly, the judgments of the district court and of the court of civil appeals are reversed, and judgment is here rendered for the plaintiff in error for the value of the property at the time of its destruction, with interest as a part of the dainage.

CONTRACTS-CONSTRUCTION IN FAVOR OF COVENANTEE. In interpreting words in a contract of which there is an uncertainty whether they should be used in an enlarged or restricted sense, that construction should be adopted which is most beneficial to the covenantee: Paul v. Travelers' Ins. Co., 112 N. Y. 472; 8 Am. St. Rep. 758; note to Cravens v. Eagle Cotton Mills Co., 16 Am. St. Rep. 306; Hoffman v. Aetna Fire Ins. Co., 32 N. Y. 405; 88 Am. Dec. 337, and note.

CONTRACTS - CONSTRUCTION — PUNCTUATION.- Punctuation may aid in ascertaining the true reading of a contract; but its absence cannot vitiate the contract: White v. Smith, 33 Pa. St. 186; 75 Am. Dec. 589.

CARRIERS-LIABILITY-WHEN

COMMENCES.-The liability of a carrier commences with the delivery of goods to him or his agent at a place where the carrier is accustomed to receive goods, or where in individual cases he agrees to receive them: Southern Exp. Co. v. Newby, 36 Ga. 635; 91 Am. Dec. 783. It is not prevented from attaching by the fact that the carrier is not ready to perform its duty and retains the property in its possession because not then able to provide the means of transportation: London etc. Ins. Co. v. Rome etc. R. R. Co., 144 N. Y. 200; 43 Am. St. Rep. 752, and note. See, also, notes to Scheu v. Benedict, 15 Am. St. Rep. 429, and Jasper etc. Co. v. Kansas City etc. R. R. Co., 42 Am. St. Rep. 83.

THE CLARENDON LAND INVESTMENT AND AGENCY COMPANY V. MCCLELLAND BROTHERS.

[89 TEXAS. 483.]

ANIMALS, DUTY OF OWNER TO KEEP IN INCLOSURE.— The common law which required every man to restrain his cattle, either by tethering or by inclosure has never been in force in Texas, and every owner of land in that state who desires to exclude therefrom any cattle running at large, or in an adjoining pasture, must throw around his own land an inclosure sufficient to exclude all guimals of the class intended to be excluded which are of ordinary disposition as to breaking fences or other inclosures.

ANIMALS COMMUNICATING DISEASE, LIABILITY OF OWNER FOR.-The owner of cattle is not liable for their straying on the lands of another through his imperfect fence, and there communicating disease to the latter's cattle, though the former knew that such fence was defective and that his cattle were likely to break through it and to communicate disease.