Blossom v. . Griffin

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 571 The goods in question were delivered to the defendants on the 3d of July, and during that night were burned without fault or negligence on their part. If at that time they were liable as forwarders only, they are not responsible for the loss. If, on the other hand, their liability as carriers had attached, then they must pay for the goods; and this is the question to be determined. The defendants were both carriers and warehousemen In such a case it is well settled that if the deposit of the goods in the warehouse is a mere accessory to the carriage, in other words, if they are deposited for the purpose of being carried without further orders, the responsibility of the carrier begins from the time they are received. (Angell on Carriers, §§ 75, 131.) So of an inkeeper who is also a carrier by land; if he receives goods into his inn to be carried, he is liable as a carrier for any loss which may happen before they are put in transit. (Angell onCarriers, § 133; Hyde v. Trent and Mersey Nav. Co., 5T.R., 389.) *Page 573 In this case it appears that the plaintiffs were in the habit of sending their goods from Buffalo to New-York, to be sold by their consignees. In the spring before the fire happened they had agreed with the defendants to be their carriers, at a price which included both freight and warehouse charges; and under this agreement the defendants, from time to time, received goods from the plaintiffs at their store-house and carried them through to New-York. The referee has also found, as matter of fact, that the goods in question were received under this agreement. They were therefore received for transportation, and, within the principle which has been stated, were there nothing else in the case, it would be very plain that the defendants became liable as common carriers. It has been urged, however, that the receipt which the plaintiffs took from the defendants on delivering the goods, declaring that they were received to be forwarded to the consignees, is conclusive against any theory of liability as carriers. The objection, I think, cannot prevail. It may be granted that the writing is more than a mere receipt; that it imports an agreement, and is therefore within the rule which excludes parol evidence where contracts are reduced to writing. But the rule itself is not quite so broad as the terms in which it is commonly stated would seem to imply. It only excludes any other evidence of the language used by the parties in makingthe contract than that which is furnished by the instrument itself. (1 Greenl. Ev., 316, 321.) It excludes the colloquium or oral negociation leading to the very contract which the parties consummate by reducing it to writing; but it does not reject an antecedent parol agreement of a different character and imposing a very different but not inconsistent obligation. The defendants, as before stated, were carriers, and as such they were under a parol agreement to carry the plaintiffs' goods generally, and those in question in particular. Their store-house was the place where they were in the habit of receiving *Page 574 goods for that purpose, and where their liability as carriers commenced. Now, although we concede that, looking at the receipt only, the goods were taken in to be forwarded in the strict and technical sense of the term, yet the defendants, in virtue of the antecedent agreement, were to take them from the store-house as carriers and transport them to New-York. Keeping in view, then, the rule already stated, their liability as carriers at once attached. Unless it can be shown, therefore, that a forwarder's receipt cancels or in some way swallows up his antecedent agreement to take the same goods as a carrier, whether the latter engagement be by parol or in writing, the defence must fail; and I think that cannot be shown. But the receipt itself, in my opinion, admits of a different interpretation from that which has been thus far conceded. In construing this, as every other writing, it is proper to look at all the surrounding circumstances, the preëxisting relation between the parties, and then to see what they mean when they speak. If no facts had been shown outside of the receipt itself, it might and probably would have imported simply an obligation to deliver the goods to some safe and responsible carrier, to be transported to their destination. But calling in the aid of all the circumstances, viewing the defendants also as carriers, and looking at their existing obligation to the plaintiffs, a fair exposition of the language used is that the property was to be "forwarded," not in the exact and technical sense which excludes the idea of transportation, but to be carried forward to its destination, as marked on the goods and expressed in the receipt, by their own line of conveyance, according to their antecedent agreement. There is no rule which requires the words of a contract to be construed in their technical sense. In general the rule is the reverse (1 Greenl. Ev., 317), and there is certainly no necessary meaning of the phrase, "to forward," which excludes the interpretation suggested. There can be no doubt that this was what the parties *Page 575 intended, and I am quite clear that in adopting such a construction, we do no violence to the language in which they expressed themselves. The judgment should be affirmed.