Courteen vs. Kanawha Dispatch and another. the stevedores who did the loading. A ship had sailed the day previous to the arrival of the peas, but none had arrived up to the time of the fire, although one did arrive on the afternoon of the fire. The steamship company had three boats, but had no specified time for sailing. The peas remained in the custody of the railroad company until they were destroyed. The plaintiff did not know the peas had not been forwarded, or of the course of business at the port. The facts above stated were shown on the trial without dispute. Both parties moved for the direction of a verdict. Defendant's motion was granted, and from a judgment dismissing the action the plaintiff has appealed. F. A. Geiger, for the appellant, to the point that defendants are not entitled to the protection of clauses 3 or 11 of the bill of lading, making them liable only as warehousemen, cited Railroad Co. v. Manufacturing Co. 16 Wall. 318; Texas & P. R. Co. v. Clayton, 84 Fed. Rep. 305, 173 U. S. 354; Conkey v. M. & St. P. R. Co. 31 Wis. 627; Lewis v. C. & 0. R. Co. 35 S. E. Rep. 908; 5 Am. & Eng. Ency. of Law (2d ed.), 263; Goold v. Chapin, 20 N. Y. 259; Reiss v. T. & P. R. Co. 98 Fed. Rep. 533, 99 Fed. Rep. 1006; McKinney v. Jewett, 90 N. Y. 267. For the respondents there was a brief by Winkler, Flanders, Smith Bottum & Vilas, and oral argument by F. C. Winkler. BARDEEN, J. Under the law of this state, a valid contract may be made limiting the common-law liability of a common carrier in any respect except exemption from the consequence of negligence. Schaller v. C. & N. W. R. Co. 97 Wis. 31; Lamb v. C., M. & St. P. R. Co. 101 Wis. 138; Densmore C. Co. v. D., S. S. & A. R. Co. 101 Wis. 563. See Morrison v. Phillips & C. C. Co. 44 Wis. 405. The plaintiff contends, and the defendants admit, that it was the duty of the railway company to deliver the peas to the steamship company with Courteen vs. Kanawha Dispatch and another. all reasonable promptness and dispatch, and for failure to do so an action would lie for the damages it caused. The defendant also admits that it had charge of this property, and had not fully performed its contract; that it remained for it, upon arrival of the steamship, to make delivery of the goods. Under this concession, unless the common-law liability had been modified by the contract, the defendant would be liable for the loss by fire. In the bill of lading there was an express stipulation against such liability. That such exemption from liability was valid is abundantly supported by the authorities cited, and cleared the defendant from liability, unless it was shown that such fire occurred through defendant's negligence. No attempt was made to prove that the railway company was in any way at fault in reference to the fire. But it is said the duty to deliver to the connecting carrier is absolute, and the company cannot shield itself from liability by showing the neglect of the succeeding carrier; citing the following cases: McLaren v. D. & M. R. Co. 23 Wis. 138; Blodgett v. Abbot, 72 Wis. 516; Peterson v. Case, 21 Fed. Rep. 885; Railroad Co. v. Mfg. Co. 16 Wall. 318. The rule of those cases is salutary, and is the law of this state as applied to the circumstances therein stated. The trouble is with its application to the facts in this case. Here the carrier had discharged its full duty so far as carriage was concerned. The goods were at their ultimate place of destination by rail. The connecting carrier had no depot, or warehouse, or dock. The stipulation in the bill of lading was that the goods were to be forwarded by a specified steamship company. Unlike carriers by land, it had no specified day of departure. The goods were held by defendant to be delivered in the regular course of business, with reasonable promptness as the ships arrived. There was no possible way by which it could have discharged itself of the custody of the goods until a ship arrived. A tender to the steamship company would have been Courteen vs. Kanawha Dispatch and another. futile, because it had no place of storage. This might be no answer for the defendant if it had not made a provision in its bill of lading to cover just such a situation. Conditions 3 and 11 seem to cover the case at all points. The first provision is: "No carrier shall be liable for loss or damage after said property is ready for delivery to the next carrier." The other says: "No carrier shall be liable . . in any other respect than as warehousemen while said property awaits further conveyance." The two provisions are of similar import, and do not exempt from loss by negligence. Adopting the language of defendant's coun sel: "To say that these goods were not there upon the pier awaiting further conveyance would be substituting unwarranted refinement of the plain sense of English words. Both parties to the bill of lading knew that from the necessity of the case there must be an interval between the carriage by rail and the further conveyance by boat. It would be difficult to devise language more clearly covering that interval than used in the bills of lading." Unless these conditions are to be considered to cover the facts present in this case, we can hardly conceive a situation with reference to these two carriers where they would be applicable. The empty form of an offer to deliver, under the circumstances in proof, would not have changed the actual custody of the goods. Under the usual course of business the goods were "awaiting further conveyance." They were "ready for delivery to the next carrier," as we understand the situation, and we cannot enter into any dubious refinement to rid ourselves of this impression. The case of Lewis v. C. & O. R. Co. (W. Va.), 35 S. E. Rep. 908, presents a widely different situation. Two steamers of the line which was to carry the lumber destroyed left the port after the last car of lumber should have arrived, and the question whether the company had used diligence was held to be for the jury under all the evidence in the case. Another question dis Courteen vs. Kanawha Dispatch and another. cussed in the case was whether there was any consideration shown for any of the limitations in favor of the company. That question is not here, because the bills of lading recite that the conditions inserted are based upon the rate of freight agreed upon. Moreover, the Schaller Case holds distinctly that the fact that there was no consideration must be affirmatively shown by the party seeking to avoid the limitations. 97 Wis. 37. Plaintiff's counsel frankly admits that his client cannot urge want of consideration in this case. The facts which seem to have controlled the decision in Reiss v. T. & P. R. Co. 98 Fed. Rep. 533, differ substantially from those of the case at bar. There was no exception from liability for loss by fire; at least, none is mentioned. The only thing necessary to put the property destroyed into the possession of the steamship company was the delivery of the transfer sheets. No vessel could be designated or call for the cotton until this was done. Upon these facts the court held that it was not "awaiting further conveyance" at the time of the fire. The conditions here present are so different that it seems easy to distinguish the cases. We are satisfied that the exemptions mentioned contemplated carriage in the usual course of business by rail and by water, and covered such usual delays as are incident to transportation by those means. There was no suspension of transportation at the election of the defendant; no evidence of any negligent exposure of the goods while awaiting further transportation. On the whole case, we are convinced that the trial court arrived at a correct conclusion. By the Court.-Judgment is affirmed. Concordia Fire Ins. Co. of Milwaukee vs. Pittelkow and wife. CONCORDIA FIRE INSURANCE COMPANY OF MILWAUKEE, Respondent, vs. PITTELKOW and wife, imp., Appellants. May 4-May 21, 1901. Mortgages: Foreclosure: Appeal: Presumptions. 1. Where in an action to foreclose a mortgage the trial court finds categorically against the defendants on the defense of duress, on appeal the finding must be taken as true when it is not antagonized by any clear preponderance of the evidence. 2. Where in an action to foreclose a mortgage the bill of exceptions does not contain the mortgage, on appeal the court will assume that the mortgage was sufficient to support a finding that a wife intended to, and did, charge her separate estate in the mortgaged premises. APPEAL from a judgment of the circuit court for Milwaukee county: EUGENE S. ELLIOTT, Circuit Judge. Affirmed. In an action to foreclose two mortgages held by the plaintiff, one of which was upon two lots in Milwaukee occupied by the defendants as their homestead, and title held under a conveyance to them "jointly as husband and wife," the defendants set up as defenses that the signature of Mary Pittelkow was obtained to said mortgage by fraud and duress, and that it was executed by her merely to validate it as a mortgage of Charles Pittelkow's interest, and not with intent to charge her separate interest therein. After trial the court found against the defendants on these issues, finding expressly that defendant Mary executed the note and mortgage as her free and voluntary act, that the mortgagee took no advantage of her, that no duress or undue influence was used or exercised to induce her to execute the note or mortgage, and that by the execution and delivery of the mortgage said defendant Mary intended to, and did, charge all of her interest and separate estate in the mortgaged premises, whereupon judgment of foreclosure and sale, without direction for deficiency judgment against either of the |