Meyer v. . Peck

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 593 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 594 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 595 It is well settled that an ordinary bill of lading is not conclusive, as between the original parties, either as to the shipment of the goods named in it, or as to the quantity said to have been received, and any mistake or fraud in the shipment of the goods may be shown on the trial. (Howard v. Tucker, 1 B. Ad. 712; Berkley v. Watting, 7 Ad. El. 29.) In Ellis v.Willard, (5 Selden, 529,) ALLEN, J. says, that part of the bill which relates to the receipt of the goods, their quality, condition and quantity, is treated as a receipt, as distinct from the contract. Numerous cases are cited in support of this rule; and DENIO, J. in the same case, says: "It [the bill of lading] is very high and authentic evidence of the quantity and condition of the goods, but is only evidence, and not between the primary parties an estoppel." The additional stipulation contained in the bill of lading, in the present case, does not affect this question. That is an agreement on the part of the carrier to pay for any deficiency in quantity. Deficiency from what? From the quantity referred to in the bill of lading. This must be *Page 597 understood to mean the quantity received. It is no more a guaranty that the captain received the whole quantity than the former part of the bill, which he is allowed to explain and to some extent contradict. It can only be understood as an agreement to pay for that portion, if any, which shall be found to be deficient of what he has received. If he is permitted, on the trial, to show that he did not receive the whole amount, and that he delivered all he received, there is no deficiency upon which such a clause can operate. We must conclude from the finding of the jury that the captain delivered to the defendant all the wheat received by him at Buffalo. It is immaterial where the error occurred in weighing. Such finding shows there was in fact no deficiency between the amount received and the amount delivered, and of course nothing to be paid for under that stipulation. The only remaining question is whether the defendant had acted upon the faith of the bill of lading, so as to place him in the situation of one who has paid money upon it, and thereby to claim that the captain is estopped from showing that he did not receive the quantity mentioned in the bill. The court refused to charge as requested, upon the ground that Horton, who gave the order for the wheat and who drew the draft, was the agent of the defendant, who was the owner and shipper of the wheat; that the draft was not paid on the faith of the bill of lading; and that the defendant did not refuse to pay the freight upon this ground. The case shows that the bill of lading did not accompany the draft, but that the same was drawn for two purchases together, irrespective of the bill of lading. The payment was made on the account of Horton, and not on the faith of the bill of lading. The evidence would not have warranted the judge to charge the jury on this point as requested. As there is no objection to the mode in which the judge submitted the question to the jury, we must conclude there was no error in this respect. The judgment should be affirmed. *Page 598