above set out, and that the liability of the company shall in no event exceed such value. *

The rate charged for the shipment in question was for a package not to exceed a $50 valuation.

Although there are six exceptions it is only necessary to consider the third and sixth, which are as follows:

"(3) That his Honor erred, it is respectfully submitted, in failing to charge the jury, as the request of the defendant's attorneys, as follows: 'I charge you, gentlemen of the jury, that if the plaintiff is entitled to recover in this case, that he cannot recover an amount in excess of $50, for the reason that he agreed to this valuation, at the time the shipment was turned over to the express company, by failing to have the agent insert in the express receipt, a greater value than $50, and in not paying an increased rate for a higher valuation, in that a contract had been entered into by the parties interested herein, limiting the value to be recovered in case of loss, as set out in the receipt, and for which a lower rate was charged.'

"(6) That his Honor, the presiding Judge, erred, it is respectfully submitted, in charging the jury, as follows: 'I will tell you that the express company has a right to make an agreement with the shipper limiting its liability to $50, but to do so they must call the shipper's attention to what is in the margin of the receipt. I will charge you that the loss on a shipment of goods is not confined to that limitation unless the shipper's attention was called to it, but after his attention was called to it, and he consents, then he is bound. If his attention was called to it, and he consented to it, then a verdict for $50 is all that you can give.' In that it is respectfully submitted that the jury was misled by his Honor's charge for the reason that more was required of the express

company, under the charge as hereinbefore stated, than the law required, the presumption being that when the plaintiff entered his signature on the contract in question, the express receipt, he is presumed to have known its contents, especially since no fraud is alleged, and anything requiring the express company to go further than to produce the contract upon which they relied is beyond the reason of the law."

The appellant's attorney in their argument say:

"There are six exceptions, but in reality there is but one proposition before the Court, and that is: Did the plaintiff and defendant agree to limit the liability, in case of loss?"

The case of American Express Co. v. U. S. Horse Shoe Co., 244 U. S. 58, 37 Sup. Ct. 595, 61 L. Ed. 990, and those therein cited, are conclusive of this question. The syllabus in that case states, correctly, the principles therein decided, which is as follows:

"A limitation of liability to an agreed value, on which the rate was based, was affected by a contract for interstate express carriage, although the shipper made no declaration of value, as to the contract of shipment contemplated, where other clauses in the contract are susceptible of no other explanation than that they were intended to fix a primary value, to control as a basis for fixing the rates, and as a rule of limitation of liability, if the shipper did not, by making another and increased value, become liable for a higher rate, and possess the right to a greater recovery, and where the rate as charged, clearly rested upon the company's tariff as applied to the shipment, and the statement as to primary value so fixed."

We have not discussed the decisions of this State, for the reason that the question arises under the Interstate Com

Syllabus

[115 S. C.

merce Law and is governed by the Federal decisions.

Reversed.

MR. JUSTICE GAGE did not participate.

10563

HARPER v. ABERCROMBIE.
(105 S. E. 749.)

1. PRINCIPAL AND AGENT-MORTGAGOR'S AGENCY TO TRADE MORTGAGEL PROPERTY AS MORTGAGEES' AGENT HELD FOR JURY.-In mortgagees action against mortgagor's purchaser for possession of mortgaged automobile following mortgagor's default, in which purchaser claimed that mortgagees were estopped from claiming ownership on the ground that they had held mortgagor out as their agent to trade the automobile to him, evidence held sufficient for submission of such issue to the jury.

2. CHATTEL MORTGAGE MORTGAGEES SUING FOR POSSESSION AGAINST MORTGAGOR'S PURCHASER REQUIRED TO PROVE THAT MORTGAGE WAS GENUINE. In mortgagees' action against mortgagor's purchaser to recover mortgaged automobile following default in purchase money mortgage, where purchaser claimed that title had remained in mortgagees, and that mortgagor had sold automobile as mortgagees' agent, mortgagees had the burden of proving the mortgage under which they claimed title was a genuine mortgage to secure an outright sale of the automobile to mortgagor.

8. PRINCIPAL AND AGENT-RECORD OF CHATTEL MORTGAGE DID NOT PRECLUDE MORTGAGOR'S PURCHASER FROM ASSERTING MORTGAGOR'S AGENCY TO TRADE.-That chattel mortgage was on record did not preclude mortgagor's purchaser, who claimed to have purchased the mortgaged automobile in the belief that mortgagor was mortgagees' agent, from interposing, in mortgagees' action for possession of automobile, the defense that mortgagees were estopped from claiming ownership by having held mortgagor out as their agent to trade automobile to purchaser.

4. TRIAL-THE COURT SHOULD ADMONISH JURIES AS TO THEIR DUTY TO DECIDE CASE, AND, IF POSSIBLE, AGREE ON VERDICT.-The Court ought

to admonish juries of their duty to decide the case in hand, and advise jurors to reconcile their differences and agree on a verdict, if it can be done upon any reasonable view on consideration of the evidence, and should keep the jury together as long as there is a reasonable probability of their being able to agree.

5. APPEAL AND ERROR-ERROR IN CHARGING JURY AS TO ITS DUTY TO AGREE HELD HARMLESS IN VIEW OF EVIDENCE.-Error of Court, if any, in impliedly threatening to keep jury together all night and perhaps longer on their inability to agree on a verdict, will not be permitted to disturb verdict, where, upon consideration of the evidence, the Supreme Court is satisfied that any fair jury would have found the same verdict, if there had been no error.

Before MEMMINGER, J., Laurens, Spring term, 1920. Affirmed.

Action by J. C. Harper and R. G. Harper, partners as Overland-Harper Co., against John Abercrombie. From judgment for defendant, the plaintiff appeals.

Messrs. F. P. McGowan and Dial & Todd, for appellant, cite: Testimony contradicting the face of the mortgage was incompetent: 97 S. C. 136. Deed absolute cannot be shown by parol to be upon a condition: 58 S. C. 125; 27 S. C. 348. Registration of mortgage as notice: 1 Civ. Code 1912, sec. 3542; 20 R. C. L. 320; 104 S. C. 164; 27 Cyc. 1199; 16 Cyc. 730; 77 S. C. 425. Verdict should have been directed: 104 S. C. 16; 109 U. S. 478. Charge on facts: 68 S. C. 153; 79 S. C. 120. Court tried to coerce jury: 38 Cyc. 1855-56.

Messrs. Simpson, Cooper & Babb, for respondent, cite: Garrett was agent of plaintiff: 15 S. C. 88; 111 S. C. 507. No charge on facts: 58 S. C. 381; 80 S. C. 531; 88 S. C. 520; 109 S. C. 295.

The opinion of the Court was delivered by MR. JUSTICE HYDRICK.

Opinion of the Court

[115 S. C Plaintiffs sued defendant for possession of an automobile, claiming title under a past-due chattel mortgage given them by R. E. Garrett for the purchase price thereof. The mortgage was dated and recorded April 4, 1919. Defendant denied the allegations of the complaint and set up the defense of estoppel, on the ground that plaintiffs had held Garrett out as their agent to trade the car to him, and that he had traded for it in that belief.

One of the plaintiffs testified that he sold the car to Garrett and took his note due at one day secured by the mortgage for the full amount of the purchase price, $1,095; that as soon as he learned (on April 9th) that Garrett had traded the car to defendant, and had not paid the note and mortgage, he took steps to get possession of it under the mortgage; that Garrett had sold and traded cars for plaintiffs as their agent for about two years prior to December 31, 1918, on which day his contract of agency expired; that while he was their agent he sold and traded a large number of cars for them in the territory assigned to him, and no notice was given the public that his agency had expired; that he owed them about $5,000, growing out of his dealings with them, for which they had been endeavoring to get a settlement on the day they sold the car in question: that in November, 1918, they put three cars into his hands for sale, and took chattel mortgages on them; that he sold them and failed to pay the mortgages, but they never attempted to take the cars from the purchasers under the mortgages; that that was not a straight sale, but the one on April 4th was, but, of course, if Garrett had paid for the car, no attempt would have been made to take it from defendant; that about March 1, 1919. he loaned Garrett a car which he traded to Hill, and turned over Hill's check and car taken in exchange; that he was dissatisfied with the price allowed for Hill's car, and paid