(after stating the facts as above). The assignments of error which complain of the refusal to direct a verdict for the-defendant would necessarily be overruled, even if they were in due form. Plaintiff was entitled to a verdict upon portions of the *55demand sued for. All the assignments of error are also informal, and might be disregarded, in that they are directed to the action of the court in overruling a motion for new trial, and not to the ruling of the court upon the trial. Error cannot be assigned upon the refusal to grant a new trial, unless in exceptional instances not here present. However, counsel’s intent to obtain a review of the rulings on the trial is so evident that we are inclined to overlook this informality in the assignment, and consider an exception to the admission of evidence, which was properly saved on the trial, and as to which error is assigned in this indirect manner. It was conceded that 100 bales of Phoenix cotton, from the Tiptonville gin within the prescribed territory, had not been sent to the Churchill compress, but had been shipped away in uncompressed form. The court took the view that, as matter of law, the special contract was merely that a certain modification would be made in the tariff rates upon the full performance of a certain condition, that the diversion of these 100 bales demonstrated material nonperformance of the condition, and that therefore the special contract was to be eliminated. Accordingly, the defendant’s evidence, offered to show that plaintiff’s damage from this nonperformance was only nominal, was rejected. This ruling necessarily opens the subject of the character of the special contract, and this, in turn, leads to a consideration of the plaintiff’s right to recover upon so much of his demand as was within the special contract, if that was in force. It is therefore permissible for us to consider these subjects, reaching them only through the roundabout way afforded by an exception to the admission of evidence; but we think it desirable to do so, since there must be a new trial, and the questions will arise again.

We are confident that the special contract could not, as matter of law, upon this record, be rightly held to be merely a conditional modification of the tariff rates. If it had been collateral to an initiated course of business under the tariff, or had been only for a special price to be granted upon one or more of the items of service covered by the tariff, it might have this conditional character; but we cannot say that this was its substance. It preceded the doing of any business for this season ; it did not include all of the particulars of service specified in the first item of this schedule, neither tagging, nor lining, nor assorting; and it did cover two matters not named anywhere in the schedule, furnishing shed room for storage, and protecting the cotton, while in plaintiff’s cusiody. It also covered an agreement to “handle,” whatever that may mean. It may be that, according to the customs of the business or the accepted trade meaning of words, promises to protect and furnish shed room for storage included nothing in addition to the obligations of the plaintiff as bailee under the general tariff, and that the tagging, lining, and assorting were negligible; but the record does not demonstrate this identity of obligation, and the natural inference seems to be the other way. We are clear, also, that this lack of identity, taken in connection with the whole record, at least tended to show that the provision about “giving us all your cotton” was not a mere condition, but was a covenant on the part of the defendant As to this conclusion, a fuller dis*56closure of the facts regarding the execution of the contract and the circumstances might be material, but the conclusion was not wholly inadmissible upon this record. Of course, if there was a covenant, rather than a condition, and there was thus a bilateral contract, its breach by defendant, in this trifling degree, would not justify its entire repudiation by the plaintiff, but would only call for deduction of the profits which plaintiff lost through the diversion of the 100 bales. The record suggests other breaches of the same covenant, but they cannot be intelligently considered, because their existence did not appear.

If this contract was not rightly construed as merely one for a conditional modification of the general tariff, it necessarily follows that it governed and controlled the liability of the defendant for those services covered thereby, and. the plaintiff could not recover upon an implied contract to pay the regular tariff for a class of service covered by one of the items thereof, irj the face of an express specific contract for service of the same general class, but different in detail and for a different price. This conclusion is confirmed by observing that the special contract was for the general and primary service which would be required as to all the cotton and which actually constituted nearly three-fourths of the items claimed for this season, while the general tariff had sole application only to special items that might or might not be required as to any particular lot of cotton, and that, in a majority of instances, were not called for. If the facts, as more fully developed on the new trial, lead to the finding by the court or jury that there was not identity of obligation under the special contract and under any parts of the general tariff, and that the special contract was, therefore, not a mere conditional rate modification, it must certainly result that the plaintiff cannot recover for the items covered by the special contract until he amends his pleadings and declares thereon, or at least so far discloses it in his declaration as to make a basis for defendant to counterclaim any damage it may prove.

For the error pointed out, the judgment must be reversed, and the case remanded for a new trial in accordance with this opinion.