Baltimore & Philadelphia Steamboat Co. v. Brown

The opinion of the court was delivered, by Thompson, J. It appears in the uncontradicted testimony of Mr. Falls, president of the Baltimore Steam Packet Company, that that company and the Baltimore and Philadelphia Steamboat Company had business connections during the month of April 1862, and that his company’s line plied between Baltimore and Fortress Monroe and other points. Both were transportation companies, and of course common carriers. It appears by the [81] bill of lading that the whiskey, for the loss of which this action was brought, was shipped by the defendants’ line to Fortress Monroe, addressed “ W. H. Brown,” on the 2d April 1862. It never came to hand according to address, and was entirely lost to the plaintiff, but how or by what means does not appear. This, however, is not material, as there was no evidence or offer to prove that it was lost by any of'the excepted perils mentioned in the bill of lading. The clerk of the firm who shipped the whiskey and paid the freight, was called by the plaintiff and proved the undertaking of the defendants to carry the cask to its destination, and its shipment pursuant to the contract. It seems from his testimony that .it had been the intention of the consignors to send it by Adams’s Express, and that this determination was changed under the advice and contract of the defendants’ agent to convey it by their line, he telling the witness that Adams’s Express went by the same boat from Baltimore to Fortress Monroe, by which their freight would go, and would get there at the same time, and would be much less expensive. He shipped it by defendants’ line, and prepaid the freight, under the agreement by the defendants’ agent to carry it through. The testimony disclosed very clearly an undertaking to transport the whiskey to Fortress Monroe on part of the defendants ; but they objected to the evidence, and claimed that the bill of lading was the contract between the parties, and being in writing, excluded all oral testimony of it. We do not think the doctrine to the extent contended for can be maintained in regard to a hill of lading, and that it is such a complete contract as to exclude all testimony of what is not expressed and necessary to a complete contract. On its face it is but a memorandum, and not in form a contract inter partes. It is doubtless an instrument fitted for the occasions in which it is usually employed, and while what it clearly expresses may not be contradicted by oral testimony, unless under the qualification of fraud or mistake, yet there is no rule which excludes testimony to explain it, and to show what the real contract was, of which it is but a note or memorandum at best. The general rule undoubtedly is, that parol evidence is not admissible to contradict, vary or alter a written instrument, because the- writing is the most exact, as well as the most deliberate and solemn mode of evidencing a contract. Whenever, therefore, evidence is admissible for any such purpose, it must generally have a foundation in pre-existing evidence of fraud, accident or mistake. But not so where the evidence is not to contradict or vary, but to explain the contract, as when something is omitted, and the like, so as to qualify the tribunal passing upon the writing to interpret it truly according to the intenf^of the [82] parties. Our books are full of authorities to this effect, but only the following will be referred to at present: 8 Harris 464; 7 Casey 252-265; 11 Id. 212; 12 Wright 491; 10 Id. 420; 1 Greenl. Ev. 285, 288. The rule .is well illustrated by the admission of parol evidence of a consideration not mentioned in a deed: 1 Penna. R. 486. Nothing was contradicted by the oral evidence admitted here. But that without which the bill of lading was unintelligible was made perfectly clear, and an implication contrary to the fact was rebutted by it, which may be done (11 Casey 212), namely, that the reference to Fortress Monroe in the bill, purported that it was to be transhipped to that point by the defendants, but not conveyed or carried. The oral testimony showed a contract to carry or cause to be carried to that point, and any doubt upon the face of the bill and the receipt of fare through, as to what was intended by its terms was dispelled, while nothing therein was contradicted. I incline to think that the bill, with a receipt on it for the through fare, was sufficient evidence of a contract. If so, the evidence did'no harm; if not, the testimony was admissible to explain what was intended. In either aspect there was no error in its admission. In 34 Ill. Rep. 389, Illinois Central Railroad v. Johnston, the implication from the receipt of fare of a contract to carry beyond the company’s line is distinctly asserted. So also to the same effect is Illinois Central Railroad v. Copeland, 24 Ill. 338, and in the Railroad Co. v. Schwarzenberger, 9 Wright 208, it is said by this court that the receipt of fare from Philadelphia to Cincinnati, if there was nothing to restrict it, might raise a presumption of an agreement to carry over the route between the two cities. So that in fact the point seems against the defendants either by the bill aided or unaided by the oral testimony. In the very recent case of Malpas v. The London and South Western Railway Co., 35 Law Jour. 166, the admissibility of parol testimony in the case of a bill of lading is expressly decided in the affirmative in Common Bench. The plaintiff shipped cattle to be carried to King’s Cross. The bill of lading was for carriage to Nine Elms, freight 14 shillings. But this was the fare to King’s Cross, and eight shillings was the regular fare to Nine Elms. Oral testimony of the contract was admitted against a similar objection to that made here. In disposing of the question, it was not put upon the ground of mistake, but to show what the contract of shipment was. Erie, C. J., said “ the oral evidence does not vary or contradict the written contract, but shows an additional contract to carry to King’s Cross.” The court held the evidence properly received. These views rule the main points against the plaintiff in error, and fully sustain the court below. 2. Some question was made on argument as to the authority [83] of Groves, the agent of the defendant, to make such a contract as the plaintiff claims he did make. On the face of the printed bill of lading of the company he is held out as the general agent of the company; his business was to receive and receipt for goods and freight-. It would be idle to deny his authority in the face of such evidence. If any authority in the company could make a contract to carry goods from Philadelphia to Fortress Monroe, we see not why the agent could not. It was a contract exactly within the scope of the company’s business, and good if it could be made by any authority of the company. But it is said the contract could not be made by the authority of the company, for it was ultra the defendants’ line. We do not think this objection good, more especially when the contracting line is in business connection with a line doing business ■ to the extent of the transit engaged, as was the case here. Between freighter and carrier such an objection cannot avail. We know of no positive law against it, and see no reason arising out of the ordinary powers of the company why it should not be so. Had there been any special clause in the charter, the question might have been different; but none such was alleged or shown. - We certainly see no policy in the law that is violated by such contracts, but, on the contrary, great convenience by holding them valid. How the matter might be in a contest between a stockholder and the company, we are not prepared to say ; but when the power is assumed and the company has undertaken to carry and been paid for it, we hold it bound and answerable for all injurious breaches of the contract between the points of transit. This has been often decided: 24 Ill. 338 ; 32 Id. 120; 34 Id. 389; 25 N. Y. 336 ; 4 Seld. 37; 5 Duer 55; 24 Barb. 382; 29 Id. 35. And in England, 8 Mees. & Wels. 421; 3 Eng. Law & Eq. 497; to which might be added many other English cases ; and also by this court (Chouteaux v. Leech, 6 Harris 224), and assumed to be the law in Railroad Company v. Sehwarzenberger, supra, without question. As we see nothing on the record to correct, the judgment is affirmed.