Lawrence v. McGregor ( 1832 )

Wright, J.,

delivered the opinion of the court:

Several questions have been raised and elaborately argued by counsel in this case, but we confine our inquiries to one. Was th® opinion given by the court to the jury correct? A decision of this question necessarily involves the inquiry whether the memorandum in the margin of the bill of lading did not form a part of the contract of affreightment, and if so, whether the Tecumseh was not to be held subject to the usage of the river as to lighting over, or draying freight round the falls. If the marginal memorandum,, connected with the bill of lading, is to be taken as part of it, and of the contract, it would be understood as an undertaking to carry in the Tecumseh from Cincinnati to the Amazon, and in her to New Orleans. Whether these marginal memorandums are esteemed a part of the bill of lading or not, may depend on the usage of th® river, upon which we are not well informed. Our own opinions upon these questions do not perfectly harmonize. We doubt if the judge in ^giving the law to the jury did not express himself stronger than the law would warrant, and the difficulty is increased by the consideration that we are without certainty as to-the precise language used by him. The opinion, whatever it was, no doubt influenced the verdict, which was taken subject to our-opinion upon the law applicable to the facts. In such cases we think it best to give a new trial, that a more full investigation of the facts may be had before another jury, and an opportunity afforded for inquiry into the usage of the river in reference to this kind of bill of lading. Such light may be hereafter shed upon the question as will enable us more satisfactorily to settle the law arising upon it.

New trial is awarded. Costs to abide the event.