The primary question of law may be stated as follows: Was the contract or lease valid and enforcible as a bar to recovery for the value of cotton negligently destroyed by fire?
The plaintiff insists that the contract or lease entered into by the parties in October, 1924, was contrary to public policy and void, for the reason that said contract permitted the defendant to relieve itself from the consequence of its own negligence. It is well settled here and elsewhere that a common carrier, while performing its duties to the public, cannot contract against its negligence. Mule Co. v. R. R., 160 N. C., 215, 76 S. E., 513; Cooper v. R. R., 161 N. C., 400, 77 S. E., 339. The defendant insists that the rule of law forbidding common carriers to relieve themselves of liability for negligence applies only to transactions in which the carrier is discharging bis duty to the public and not to transactions involving no public duty or obligation. This distinction is pointed out and applied in Slocumb v. R. R., 165 N. C., 338, 81 S. E., 335. In that ease the railroad company leased a part of its right of way for the erection and maintenance of a distillery. The distillery was destroyed by fire, resulting from the negligence of defendant. The Court said: “It is well settled here and elsewhere that a common carrier while performing its duties to the public cannot contract against its negli*465gence; but the public bad no interest in the plant of the plaintiff or in the lease between bim and the defendant, and the authorities seem to be uniform that such contracts are not against public policy and are enforcible.” Hence recovery was denied. The Slocumb case has been cited and applied by the Circuit Court of Appeals in Southern Railway Co. v. Stearns Bros., 28 Fed. (2d), 560. Parker, Circuit Judge, wrote: “It is well settled that a railroad company cannot contract against liability for its negligence with respect to the performance of its duty as a common carrier. This rule has no application, however, to contracts by which it leases portions of its right of way for uses not connected with the discharge of its duty as such carrier. Tbe public has no interest in such contracts, and a provision that the railroad is not to be held liable for negligence resulting in damage to property placed upon the leased premises is not void as being contrary to public policy. This is the bolding not only of the Federal Courts, but also of the courts of North Carolina, by whose public policy the validity of the contract is to be governed.” See, also, Godfrey v. Power Co., 190 N. C., 24, 128 S. E., 485. A ease directly in point is German-Americam, Ins. Co. v. Southern Ry. Co., 58 S. E., 337. In that case cotton upon a platform of the railroad company was destroyed by fire. Tbe Supreme Court of South Carolina said: “Tbe authorities generally bold that a contract by a railroad corporation is not against public policy because it exempts from liability for fires, even negligently communicated by its agents or defective instrumentalities to property placed by the owner upon railroad premises, not as a patron dealing with the company as a common carrier, but by virtue of the special agreement.”
In the case at bar the plaintiff did not place bis cotton upon the platform as a patron of the defendant, for the reason that the contract or lease expressly states that “said cotton not having been tendered or accepted for shipment, and bill of lading not having been issued therefor but ultimately for movement via said railroad,” etc. It is to be observed that the contract did not obligate the plaintiff to “ultimately” ship the cotton by railroad, and there is abundant evidence in the case that substantial portions of cotton placed upon the platform were moved by truck and not tendered to the defendant for shipment. Consequently, the Court is of the opinion that the facts disclose that the plaintiff in making the contract, was not undertaking to deal with the railroad in its capacity as common carrier, but rather for bis own convenience upon the basis of using a portion of the right of way for the purpose of assembling cotton. Hence the special agreement or lease agreement constituted a bar to the right of recovery for negligent destruction of the cotton.
*466Two secondary questions of law are urged by the plaintiff. First, that the contract was abandoned, and second, that the trial judge excluded certain evidence offered by the plaintiff tending to show that the lease or special agreement was intended by the parties to apply only to a certain lot of cotton which the plaintiff had on the platform at the time the contract was executed.
When a valid contract has been duly executed it is presumed to remain in force and effect until it is abandoned or relinquished. This Court has declared that “a written contract may be abandoned or relinquished: (1) by agreement between the parties; (2) by conduct clearly indicating such purpose; (3) by substitution of a new contract inconsistent with the existing contract.” Bixler v. Britton, 192 N. C., 199, 134 S. E., 488. It is not contended that the first or third method of contractual abandonment was effective in this case. Hence the second method or abandonment by conduct is the only method available to the plaintiff. Upon that aspect of the law, the Court has spoken in these words: “But it is clear that the acts and conduct constituting such abandonment must be positive, unequivocal and inconsistent with the contract.” Robinet v. Hamby, 132 N. C., 353, 43 S. E., 907. See, also, Harper v. Battle, 180 N. C., 375, 104 S. E., 658. Nor did the trial judge err in excluding the testimony as to the understanding and intent of the plaintiff at the time the written contract was executed. The controlling principle of law ivas tersely stated in Walker v. Venters, 148 N. C., 388, 62 S. E., 510, as follows: “A contemporaneous agreement shall not contradict that which is written. The written word abides and is not to be set aside upon the slippery memory of man.”
The plaintiff relies upon Herring v. R. R., 189 N. C., 285, 127 S. E., 8. However, an examination of the facts in that case indicates that the plaintiff was dealing with the railroad company as a patron or in its capacity as a common carrier.
No error.