renewals, when they (as were their predecessors) are supported by a substantial consideration, viz, a large part of the interest collected and retained by the defendant, which otherwise would be the property of the plaintiff.

In arriving at the above conclusion, we are assuming for the purpose of this case, but without deciding, that the "Without recourse" stamp upon the former notes relieved the defendant from any liability thereon. The following cases tend to sustain the contention that neither the cashier, the president or vice-president of the bank has authority to make such contracts and that under such circumstances the indorsements would not relieve the original guarantor, but its liability would remain as it was had they not been made. We think it unnecessary to go into this question.

Daniel on Negotiable Instruments (5th Ed.) vol. 1, § 395; Bank of U. S. v. Dunn, 6 Pet. 51, 8 L. Ed. 316; Ecker v. First Nat. Bank, 59 Md. 291; Hodge's Executor v. First Nat. Bank, 22 Grat. (Va.) 51; Olney v. Chadsey, 7 R. I. 224; Thompson v. McKee, 5 Dak. 172, 37 N. W. 367; Daviess County Sav. Assn. v. Sailor, 63 Mo. 24; Savings Bank v. Hughes, 62 Mo. App. 576; Merchants' Bank v. Rudolf, 5 Neb. 527; State Bank of Moore v. Forsyth, 41 Mont. 249, 108 Pac. 914, 28 L. R. A. (N. S.) 501.

The defendant contends that, if true, its oral promise to reindorse is void under our statute of frauds, not being in writing and being a promise to answer for the debt of another. If sanction could be given to the validity of the transaction upon which this promise is based, this claim might be answered by the facts that when the promise was made the defendant was liable on the notes, and its primary object was to serve itself rather than to answer for the debt of another, and for its own interest it agreed to thereafter put itself in the position which it then stood, namely, become the guarantor of the notes. This might be held to be an original, and not a collateral agreement. Fisk v. Reser, 19 Colo. 88; Browne on Statute of Frauds (5th ed.), §§ 164, 165, 204. But, as stated, we do not care to give our sanction to any contract involving such a transaction, hence,

assuming that it was void, but that the indorsements relieved the defendant from its liability on the notes then in existence, the entire contract had been executed long prior to bringing the suit. The indorsements were reinstated and continued upon three subsequent renewals at each of which times the defendant, as it had before, collected all of the interest and retained its share, which was a substantial amount. The contract having been executed takes it out of the statute of frauds.

Tynon v. Despain, 22 Colo. 240, 43 Pac. 1039; McLure v. Koen, 25 Colo. 284, 53 Pac. 1058; Browne on the Statute of frauds (5th Ed.) § 116; Franklin v. Matoa G. M. Co., 158 Fed. 941, 88 C. C. A 145, 16 L. R. A. (N. S.) 381, 14 Ann. Cas. 302; Minchener v. Henderson, 181 Ala. 115, 61 South, 246; Harris T. & W. Co. v. Moor, 10 Ala. App. 469, 65 South. 416; First Nat. Bank v. Gallagher, 119 Minn. 463, 138 N. W. 681, Ann. Cas. 1914B, 120.

The judgment is reversed.
Decision en banc.
Mr. Justice White and Mr. Justice Scott dissenting.

Mr. Justice Teller not participating.

Decided February 7, A. D. 1916. Rehearing denied April 2, A. D. 1917.

No. 8335.

ATCHISON, TOPEKA & SANTE FE RAILWAY Co. v. MILLER. 1. COMMON CARRIER-Live Stock-Notice of Injury. A stipulation in the bill of lading of live stock, requiring, as a condition precedent to a recovery for damage thereto, written notice of the fact and nature of the claim, to be given to the carrier, before the removal of the animal from the destination, is, when founded upon sufficient consideration, valid. A reduced rate of carriage is a sufficient consideration.

2. Waiver of Notice. Where the subject of the shipment is interstate commerce the carrier cannot waive the notice.

Error to Denver District Court, Hon. George W. Allen, Judge.

Mr. HENRY T. ROGERS, Mr. GEORGE A. H. FRASER, Messrs. ROGERS, ELLIS & JOHNSON, for plaintiff in error.

Mr. JOHN T. BOTTOM and Mr. MILNOR E. GLEAVES, for defendant in error.

Mr. Justice Bailey delivered the opinion of the court.

IN February, 1912, the defendant in error, E. J. Miller, shipped two carloads of horses for market over the lines of the Atchison, Topeka & Santa Fe Railway Company, plaintiff in error. Miller brought action against the company on January 30, 1913, alleging the delivery to it of fifty-six horses, shipped from Boulder, Colorado, to Camden, Arkansas, to be routed through Pueblo, Colorado, and Kansas City, Missouri, for which he paid freight charges, as demanded by the company; that the company was so negligent and careless in the acceptance of the shipment and carriage of the horses, that all of them, with the exception of six thereof, were unlawfully held upon the train and cars in which they were loaded, without being unloaded, fed, watered or rested, for a period of forty-five and a half hours, contrary to the laws and usages of the United States, and of' Interstate Commerce, and the laws of the State of Colorado; that because of such negligent and unlawful acts of the company, the horses were greatly emaciated, weakened, shrunken, damaged and made unfit for sale in the market, and three of them were thereby killed. The items of damage sought, amounting to $2,752.00, based upon the market value, are then set forth.

The substance of the first defense is that the damage, if any, was unavoidable, and was caused by a series of extraordinary, unexpected and unprecedented snow-storms and blizzards prevailing through Kansas and Colorado at the time of moving the horses.

Further answering, and for a second and separate defense, two live stock shipping contracts made, executed and delivered between plaintiff and defendant are relied upon, by which it averred the horses were shipped, each of which, among other provisions, contained the following:

"Eighth. In order that any loss or damage to be claimed by the shipper may be fully and fairly investigated, and

the fact and nature of such claim or loss preserved beyond dispute, and by the best evidence, it is agreed that as a condition precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any purpose on the company's road, or previous to loading thereof for shipment, the shipper or his agent in charge of the stock will give notice in writing of his claim thereof to some officer of said company or to the nearest station agent or, if delivered to consignee at a point beyond the company's road, to the nearest station agent of the last carrier making such delivery, before such stock shall have been removed from the place of destination above mentioned, or from the place of delivery of the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not move such stock from such destination or stock yards until the expiration of three hours after the giving of such notice; and a failure to comply in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damages. The written notice herein provided for cannot and shall not be waived by any person except a general officer of the company and he only in writing. Nor shall any such damage be recoverable unless written claim therefor shall be presented to the company within ninety-one days after the same may have occurred."

It is averred that plaintiff failed and neglected to give notice of his claim for damages, and that no waiver thereof was given as provided for in this paragraph of the contract.

The replication takes issue on the affirmative matters of the first defense, and pleads to the second defense a waiver of the provisions contained in paragraph eight, consisting of an alleged incident and conversation occurring between plaintiff and a representative of defendant at Kansas City, Missouri, where the horses were unloaded and examined by such representative, who admitted that

they had been damaged, and advised plaintiff to take them through to their original destination, advising him that the company would treat him right. Upon trial a verdict was returned in favor of the plaintiff for the sum of $2,283.10. A motion for a new trial was overruled, and judgment entered on the verdict. Defendant prosecutes

this writ of error.

The first question to determine is whether contract requiring that written notice of the fact and nature of any claim for damages be given by the shipper to the carrier before such stock shall have been removed from the place. of destination, etc., in the manner provided, as a condition precedent to recovery, is binding and valid, the plaintiff admitting that no such notice was given.

This was an interstate shipment, and is therefore governed exclusively by federal legislation and decisions thereon.

Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. ed. 314, 44 L R. A. (N. S.) 257; C., B. & Q. Ry Co. v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. ed. 323; Chicago, St. P. & P. Ry. Co. v. Latta, 226 U. S. 519, 33 Sup. Ct. 155, 57 L. ed. 328; Wells Fargo & Co. v. Neiman-Marcus Co., 227 U. S. 469, 33 Sup. Ct. 267, 57 L. ed. 600; Kansas Southern Ry Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. ed. 683; Atchison & Topeka Ry. Co. v. Robinson, 233 U. S. 173, 34 Sup. Ct. 556, 58 L. ed. 901; Boston & Maine Rd. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526 58 L. ed. 868, L. R. A. 1915B, 450, Ann. Cas. 1915D, 593; Mo., Kans. & Tex. Ry. Co. v. Harris, 234 U. S. 412, 34 Sup. Ct. 790, 58 L. ed. 1377, L. R. A. 1915E, 942; St. Louis & S. F. Ry. Co. v. Zickafoose, 39 Okl. 302, 135 Pac. 406; St. Louis & S. F. Ry. Co. v. Bilby, 35 Okl. 589, 130 Pac. 1089; Chicago, R. I. & P. Ry. Co. v. Bruce (Okl.), 150 Pac. 880.

Discussing this subject, in Adams Co. v. Croninger, supra, the Supreme Court of the United States, reversing the Circuit Court of Kenton County, Kentucky, spoke as follows: