REYNOLDS, P. J.
(after stating the facts). — The first proposition made, among the twenty-one points in the very elaborate brief of the learned counsel for appellant, is that the rule that goods delivered in good order to an initial carrier are presumed to continue so until they get into the possession of the carrier which delivers them at the place of destination in a damaged [447]*447condition, cannot apply to highly perishable property. Counsel cite in support of this position, Lin v. Terre Haute & Ind. R. Co., 10 Mo. App. 125; Crouch v. Louisville & Nashville Ry. Co., 42 Mo. App. 248; Flynn v. St. Louis & S. F. Ry. Co., 43 Mo. App. 424; Hull v. St. Louis, Trustee, 138 Mo. 618. None of these cases support this contention of an exception to the general rule. Referring to the last one, Hull v. St. Louis, it appears that it was an action for compensation for personal services rendered by plaintiff for defendant in and about the appraisement of certain property, which it holds in trust as a charitable fund to furnish relief to all poor emigrants and travelers coming to St. Louis bona fide to settle in the West. We are unable to conjecture any reason for its citation in this case. Lin v. Railroad, was a suit for damages to a trunk in transit. Crouch v. Railroad:, was for damages for injury to horses. Flynn v. Railroad, is for injury to household goods. We are at a loss to understand how any of these Missouri cases can be said to have injected an exception in favor of highly perishable property to the rule which they all announce as the one governing in this State, namely, that goods delivered in good order to an initial carrier are presumed to continue so until they get into the possession of the final carrier. This court distinctly held, in Hurst v. Railroad, 117 Mo. App. 25, the opinion in the case written by Judge Goode, that “as there was no proof that the fruit was already damaged, the presumption, in the absence of evidence on the issue, would be that defendant delivered it in good condition to the last carrier and the damage occurred on its line.” Judge Goode cites in support of this, Crouch v. Railroad and Flynn v. Railroad, supra. So that this case in effect holds that the same rule of presumption applied, whether the freight carried was perishable, as peaches or apples, or non-perishable, as in the case of household goods or the like. In support of their proposition, counsel have referred us to the case [448]*448of Swetland v. Boston & Albany R. Co., 102 Mass. 276. It is true that that case was one involving a right to recover damages alleged to have been sustained by the freezing of a carload of apples carried over two roads, and it is true that the court held in that case that there was no evidence in it authorizing a jury to find that the apples were delivered to the final carrier before they were frozen. But this is not stated in the Massachusetts case as an exception to the rule which the court seems to recognize as pertaining to all shipments, and all that can be said of it is that if it applies to shipments generally or to perishable freight in particular, it is not in line with onr Missouri decisions.
The proposition is also made by counsel for appellant, that in case of loss of goods, the market value must be determined in one market to apply to goods in good condition at that one market. Counsel cite in support of this Heil v. St. L., I. M. & S. Ry. Co., 16 Mo. App. 363. In that case it is distinctly held that a stipulation in the bill of lading, that the cost of the property at the point of shipment shall govern in case of loss, does not refer to damage or- deterioration while in transit, and that the measure of damages for the injury of goods while in transit is the difference between the reasonable market value of the goods at the point of destination when they should have arrived and their real value there in their damaged condition.' In Caples v. Louisville, etc., R. R. Co., 17 Mo. App. 14, under a like stipulation in the bill of lading as in this case, it was held that the measure of damage is the difference in value at the place of shipment. But by this instruction the court set two markets, that at the point of shipment and that at the point of destination. This instruction is erroneous. Complaint is also made to that part of this instruction which allows the jury to include in the damage, “such further amount as yon may find plaintiff for freight charges on said car.” [449]*449This should not have been given. Plaintiff was liable for at least the freight charges on so much of the carload as' he received, if freight charges are to be considered. He was not liable, however, for freight charges, on the damaged part of the goods. If the measure of damage was the value of the peaches in the East St. Louis market, that value in the East St. Louis market would .generally be the cost at point of shipment, plus the freight and charges of carriage, plus any increase in value, so that in no case should the freight be added to the East St. Louis value.
Another proposition strenuously argued and elaborately briefed by the learned counsel for appellant is on the plea of res adjudicaba,. It is suffi.cient to say of this that in the first place, it is not properly pleaded, as no final judgment is pleaded, the judgment as pleaded being merely a judgment of dismissal and for costs, and in the next place the record introduced in evidence shows in itself that it was a judgment of dismissal, by direction of the court, it is true, but not on a verdict or finding as on a trial before the court or the jury. That is to say, there is no final judgment finding for the defendant on the issue joined. Practically, the judgment of record and as pleaded, is of the same effect as if plaintiff had been forced by the ruling of the court to take a nonsuit, and whether he takes that voluntarily or is forced to take it by the action of the court in either case, it is a mere dismissal of the cause and not a judgment that can be pleaded in bar of any subsequent action between the same parties on the same subject-matter.
Much stress is laid upon the alleged error of the court in admitting in evidence the letter from the freight agent of the defendant to the plaintiff, which we have set out practically in full in the statement of the case. The objection made to this is that it is hearsay and as it is the only evidence in the case of the fact that the car was iced when loaded, that, if it had been excluded, [450]*450it left the plaintiff without any testimony whatever on this very vital proposition. That would be true, but we do not think that this letter and the statements in it come within the class of hearsay testimony; on the contrary, it is a distinct admission of a constitutive fact by a recognized agent of the defendant, made in the line of his duty and in the performance of his official work.
Serious complaint is made of the instructions as given and the refusal of those asked by the defendant. We have given the substance of them and see nothing either in those given or in those refused to the prejudice of the defendant, except the one as to the measure of damages. Those given are substantially correct and properly cover the issues and those refused either had been covered by those already given by the court, either at the instance of the plaintiff or of its own motion, were framed in such language as prevented the court from giving them, or were outside the issues joined in the ■pleadings.
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REYNOLDS, P. J.
(after stating the facts). — The first proposition made, among the twenty-one points in the very elaborate brief of the learned counsel for appellant, is that the rule that goods delivered in good order to an initial carrier are presumed to continue so until they get into the possession of the carrier which delivers them at the place of destination in a damaged [447]*447condition, cannot apply to highly perishable property. Counsel cite in support of this position, Lin v. Terre Haute & Ind. R. Co., 10 Mo. App. 125; Crouch v. Louisville & Nashville Ry. Co., 42 Mo. App. 248; Flynn v. St. Louis & S. F. Ry. Co., 43 Mo. App. 424; Hull v. St. Louis, Trustee, 138 Mo. 618. None of these cases support this contention of an exception to the general rule. Referring to the last one, Hull v. St. Louis, it appears that it was an action for compensation for personal services rendered by plaintiff for defendant in and about the appraisement of certain property, which it holds in trust as a charitable fund to furnish relief to all poor emigrants and travelers coming to St. Louis bona fide to settle in the West. We are unable to conjecture any reason for its citation in this case. Lin v. Railroad, was a suit for damages to a trunk in transit. Crouch v. Railroad:, was for damages for injury to horses. Flynn v. Railroad, is for injury to household goods. We are at a loss to understand how any of these Missouri cases can be said to have injected an exception in favor of highly perishable property to the rule which they all announce as the one governing in this State, namely, that goods delivered in good order to an initial carrier are presumed to continue so until they get into the possession of the final carrier. This court distinctly held, in Hurst v. Railroad, 117 Mo. App. 25, the opinion in the case written by Judge Goode, that “as there was no proof that the fruit was already damaged, the presumption, in the absence of evidence on the issue, would be that defendant delivered it in good condition to the last carrier and the damage occurred on its line.” Judge Goode cites in support of this, Crouch v. Railroad and Flynn v. Railroad, supra. So that this case in effect holds that the same rule of presumption applied, whether the freight carried was perishable, as peaches or apples, or non-perishable, as in the case of household goods or the like. In support of their proposition, counsel have referred us to the case [448]*448of Swetland v. Boston & Albany R. Co., 102 Mass. 276. It is true that that case was one involving a right to recover damages alleged to have been sustained by the freezing of a carload of apples carried over two roads, and it is true that the court held in that case that there was no evidence in it authorizing a jury to find that the apples were delivered to the final carrier before they were frozen. But this is not stated in the Massachusetts case as an exception to the rule which the court seems to recognize as pertaining to all shipments, and all that can be said of it is that if it applies to shipments generally or to perishable freight in particular, it is not in line with onr Missouri decisions.
The proposition is also made by counsel for appellant, that in case of loss of goods, the market value must be determined in one market to apply to goods in good condition at that one market. Counsel cite in support of this Heil v. St. L., I. M. & S. Ry. Co., 16 Mo. App. 363. In that case it is distinctly held that a stipulation in the bill of lading, that the cost of the property at the point of shipment shall govern in case of loss, does not refer to damage or- deterioration while in transit, and that the measure of damages for the injury of goods while in transit is the difference between the reasonable market value of the goods at the point of destination when they should have arrived and their real value there in their damaged condition.' In Caples v. Louisville, etc., R. R. Co., 17 Mo. App. 14, under a like stipulation in the bill of lading as in this case, it was held that the measure of damage is the difference in value at the place of shipment. But by this instruction the court set two markets, that at the point of shipment and that at the point of destination. This instruction is erroneous. Complaint is also made to that part of this instruction which allows the jury to include in the damage, “such further amount as yon may find plaintiff for freight charges on said car.” [449]*449This should not have been given. Plaintiff was liable for at least the freight charges on so much of the carload as' he received, if freight charges are to be considered. He was not liable, however, for freight charges, on the damaged part of the goods. If the measure of damage was the value of the peaches in the East St. Louis market, that value in the East St. Louis market would .generally be the cost at point of shipment, plus the freight and charges of carriage, plus any increase in value, so that in no case should the freight be added to the East St. Louis value.
Another proposition strenuously argued and elaborately briefed by the learned counsel for appellant is on the plea of res adjudicaba,. It is suffi.cient to say of this that in the first place, it is not properly pleaded, as no final judgment is pleaded, the judgment as pleaded being merely a judgment of dismissal and for costs, and in the next place the record introduced in evidence shows in itself that it was a judgment of dismissal, by direction of the court, it is true, but not on a verdict or finding as on a trial before the court or the jury. That is to say, there is no final judgment finding for the defendant on the issue joined. Practically, the judgment of record and as pleaded, is of the same effect as if plaintiff had been forced by the ruling of the court to take a nonsuit, and whether he takes that voluntarily or is forced to take it by the action of the court in either case, it is a mere dismissal of the cause and not a judgment that can be pleaded in bar of any subsequent action between the same parties on the same subject-matter.
Much stress is laid upon the alleged error of the court in admitting in evidence the letter from the freight agent of the defendant to the plaintiff, which we have set out practically in full in the statement of the case. The objection made to this is that it is hearsay and as it is the only evidence in the case of the fact that the car was iced when loaded, that, if it had been excluded, [450]*450it left the plaintiff without any testimony whatever on this very vital proposition. That would be true, but we do not think that this letter and the statements in it come within the class of hearsay testimony; on the contrary, it is a distinct admission of a constitutive fact by a recognized agent of the defendant, made in the line of his duty and in the performance of his official work.
Serious complaint is made of the instructions as given and the refusal of those asked by the defendant. We have given the substance of them and see nothing either in those given or in those refused to the prejudice of the defendant, except the one as to the measure of damages. Those given are substantially correct and properly cover the issues and those refused either had been covered by those already given by the court, either at the instance of the plaintiff or of its own motion, were framed in such language as prevented the court from giving them, or were outside the issues joined in the ■pleadings.
One of the propositions most insisted on is that the court below erred in refusing the third instruction requested by defendant, that the contract under which the peaches were shipped only required the defendant to ice the car at Frankfort, Indiana, and if the jury found that had been done, defendant had complied with its contract and was entitled to a verdict. The answer contained these defenses: First, a general denial, second, a plea of contributory negligence on the part of plaintiff, his agents and servants in the loading of the peaches; third, that the bill of lading provided every service performed in hauling the peaches should be subject to the conditions of the bill of lading and one condition was no carrier should be liable for losses beyond its control or occurring beyond its own line; that the loss in question occurred from causes beyond defendant’s control and not on its line; fourth, that the contract of shipment provided no person should be liable in any event for more than the value of the goods at the time [451]*451of shipment and that claims for loss or damage should he promptly made in writing to the agent at point of delivery or no carrier should be liable in any event; that no such claim was served on defendant at point of delivery; fifth, the plea of former adjudication. It will be seen that the answer did not plead any defense based on a condition of the contract by which plaintiff himself directed defendant to re-ice the car only at Frankfort, Indiana, or reserved the right to control the icing. This defense not being pleaded and no issue being raised to which the third requested instruction would be relevant, it was rightly refused for that reason. If defendant wished to avail himself of such a defense, it should, by its answer have invoked th§ provision of the contract by which plaintiff is said to have directed the icing of the car and have alleged obedience to his' direction. [Halliday v. Railroad, 74 Mo. 159.]
On the argument, counsel for defendant in open court waived the point made in the brief as to the instruction on the measure of damages so that that is no longer in the case. We do not think the judgment should be reversed as excessive, after the remittitur entered by plaintiff. Wherefore, as all the points raised on the appeal, except the one on the measure of damages, and that one waived by the defendant, have been resolved against defendant, the judgment will be affirmed.
All concur.