O'Brien v. Gilchrist

Appleton, J. That a receipt may be contradicted by pa-rol evidence, has long been considered well settled law. The bill of lading, so far as regards the condition of the goods shipped, is prima fade evidence of a high nature, but not conclusive. Barrett v. Rogers, 7 Mass. 297. The master of a vessel is not authorized to open the packages to ascertain their condition. The principles of public policy and the convenience of transportation forbid that boxes, bales, &c. should be opened and inspected before receipted for by carriers. They therefore, may show that they were damaged before coming into their possession. Gowdy v. Lyon, 9 B. Mun. 113. The same rule of law has been applied to the quantity of g oods therein stated as having been received for transporta [559] tion. In Bates v. Todd, 1 M & R. 106, Tindal, C. J. said, that he was of opinion that, as between the original parties, the bill of lading is merely a receipt liable to be opened by the evidence of the real facts and left the question for the jury to determine what number of bags of coffee had been shipped. In Berkely v. Watting, 34 E. C. L. 22, it was held, that the defendants were not estopped by the bill of lading to show that goods purporting to be, were not in fact, shipped. In Dickerson v. Seelye, 12 Barb. 102, Edmonds, J., in delivering the opinion of the Court, says, “ as between the shipper of the goods and the owner of the vessel, a bill of lading may be explained so far as it is a receipt; that is, as to the quantity of goods shipped and the like; but as between the owner of the vessel and an assignee for a valuable consideration paid on the strength of the bill of lading, it may not be explained.” What may be the rights of an assignee under such circumstances it is not necessary to consider or determine here, as that question does not arise in the present case. In Wayland v. Mosely, 5 Ala. 430, the Court say, “that a bill of lading in its character is twofold, viz ; a receipt and a contract to carry and deliver goods. So far as it acknowledges the receipt of goods and states their condition, &c. it may be contradicted, but in other respects it is treated like other written contracts.” In May v. Babcock, 4 Ohio, 334, the language of the Court is, that “ a bill of lading is a contract including a receipt.” The same doctrine in New York is likewise fully affirmed in Walfe v. Myers, 3 Sand. 7. The best elementary writers also concur in this view of the law. 1 Greenl. Ev. § 305; Abbott on Shipping, 324. The evidence, so far as relates to this question, was legally admissible and the instructions of the Court in relation thereto were in conformity with well established principles. The evidence offered by way of giving a construction to the meaning of the words “more or less” in the bill of lading, was most clearly inadmissible. The Court however directed the jury entirely to disregard all evidence, which [560] was designed to control the legal' construction of the instrument, and it is to be presumed that the jury in rendering their verdict followed the instructions of the Court. At the same time, the construction of these words, as given in the charge of the Judge, was most favorable to the plaintiff. Exceptions overruled. Judgment on the verdict. Shepley, C. J., and Tenney and Howard, J. J., concurred.