Cox v. Peterson

RICE, C. J. The defendants are common carriers. The bill of lading, delivered by them to the consignor,, the agent of the plaintiff, contains their contract with the plaintiff. They cannot be permitted to add other terms to that written contract, or to contradict or vary it, either by a writing in the form of a bill of lading subsequently sent by them to the plaintiff, or by parol evidence. — West v. Kelly, 19 Ala. 353; Cole v. Spann, 13 Ala. 537, and authorities cited for appellee. The main question is not one of actual blame, but of legal obligation. The contract of the defendants, as common carriers, was to transport and deliver at Columbus the goods of the plaintiff received by them, “dangers of the river excepted.” By it, they became absolutely liable for the safety of the goods, until delivered at the pi ace therein specified, and responsible for losses resulting before delivery at that place, from fire, or from any and every other cause whatever, except “dangers of the river,” or the act of God, or the public enemies, or the fault of the plaintiff. Coggs v. Barnard, and the notes thereto, 1 Smith’s Leading Cases, (edition of 1855,) top pages, 283, 315 ; Friend v. Wood, 6 Grattan’s R. 189; McClenaghan v. Brock, 5 Rich. Law Rep. 17; N. J. Steam Nav. Co. v. Merchants’ Bank, 6 How. (U. S.) Rep. 344; Patton’s Adm’rs v. Magrath & Brooks, Dudley’s Rep. 159; Harrell v. Owens, 1 Dev. & Batt. 273; Edwards on Bailments, 513. The only exception expressed in the contract is, “dangers of the river.” The only exceptions implied by law are, the [612] act of G-od, or of the public enemies, or the fault of the plaintiff. The excuse arising from the inability of the steamboat by reason of the low stage of the water, to ascend the river as far up as Columbus, is no defense for violating their engagement to deliver the goods at Columbus. Nor was the engagement to deliver them at Columbus performed, discharged, or terminated, by their placing them in the warehouse at Newport. Nor was their liability for the safety of the goods diminished by their placing them in that warehouse. — Edwards on Bailments, 514, and authorities supra; Davis v. Garrett, 6 Bing. 716. If the goods had been safely delivered at Columbus, and this suit had been one for not carrying and delivering them there in a reasonable time, then the question might have been raised, whether a common carrier, in respect to the time of delivery of goods, may excuse delay in the delivery, by accident or misfortune, although not inevitable, where he has used due care and diligence to guard against delay. That question seems to have been considered and decided in the affirmative in Parsons v. Hardy, 14 Wend. 215; and in Boner & Crist v. Merchants’ Steamboat Co., 1 Jones’ No. Ca. Rep. 211. But there is no such question in this case. The question here is as to the liability for not delivering.the goods at all — for their loss, — not tor mere delay in delivering; and even if it were conceded that the placing the goods in the warehouse at Newport, under the circumstances proved, might be an excuse for mere delay in not delivering them, yet it cannot exempt the defendants, as common carriers, from their duty to keep them safely, or liability for their loss by fire in the warehouse. The usage, or custom, which the defendants offered to prove, does not touch the question of the liability of the defendants for the loss of the goods by fire in the warehouse at Newport, before they had been delivered at Columbus, but tends only to show an excuse for mere delay in not delivering. As there was no such question of delay, in this case, the evidence as to the usage was irrelevant and inadmissible. But, if the usage had tended to show that the defendants were exempt from lia_ [613] bility, under their written contract, for the loss of the goods by fire before they were delivered at Columbus, then the evidence as to the usage would have been inadmissible, as its plain effect would have been to vary or contradict the written contract. — Barlow v. Lambert, 28 Ala. 704; Smith & Holt v. Mobile Nav. & Mut. Ins. Co., at last term. In Lowe v. Moss, 12 Illinois Rep. 477, it was decided, that the receipt by the owner, of a part of a lot of goods in transitu, does not discharge a common carrier from liability as to the remainder. That decision meets our unqualified approval. The acceptance of part may be given in evidence in mitigation of damages. It has no greater effect. — Bowman v. Teal, 23 Wend. 306; Leavitt v. Smith, 7 Ala. 175. The unexecuted intention to accept the other part is not an acceptance of it. Waters v. Spencer, 22 Ala. 460. There is no error; and the judgment of the court below is affirmed.