Ellis v. . Willard , 9 N.Y. 529 ( 1854 )

The bills of lading signed by the plaintiff were in the usual form, acknowledging that the property was shipped in good order and agreeing to deliver the same at the places of destination in like good order. It is claimed by the defendant that by it the plaintiff is estopped from showing the true condition of the property at the time of shipment, and the principal exception in the case is to the decision of the referee admitting evidence upon that point, and in giving effect to it in his final report, and exonerating the plaintiff from liability upon proof that the hides were in a damaged condition when shipped.

The statement of the condition of the property in the bill of lading constitutes no part of the contract of affreightment, and the relation of the parties and the nature of the contract will not allow us to call it a contract of warranty. If it was a part of the agreement between the parties, as is claimed by the defendant, then the referee erred in the admission of parol evidence to vary it. But, like the statement in respect to the quantity and amount of the property, it is but a declaration, an admission by the party signing it, and is no more conclusive than any other acknowledgment or admission. It is prima facie evidence of the fact stated, and casts the burthen of proving it otherwise upon the party making it. An admission or declaration is never conclusive, whether made in writing or verbally, as a mere admission or declaration not acted upon. It may become so, or rather the party may be estopped from contradicting it as against one who has acted upon the faith of it, and has parted with property relying upon the truth of the statement. A ship-owner may be estopped from alleging a deficiency in the property shipped as against a consignee who has advanced money upon the credit of the bill of lading. But receipts and admissions, as such, are always open as between the parties to explanation, and are impeachable for any mistake, error or false statement contained in them. In a word, they may always be contradicted, varied or explained by parol testimony. (1 Phil. Ev., 107; 1Cow. Hill's Notes, 213, note 194; 3 Stark. Ev., 1271;Tobey v. Barber, 5 John., 68.) A bill of lading is not an exception to the rule; and that part of the bill which relates to the receipt of the goods, their quality, condition and quantity, is treated as a receipt, as distinct from the contract. (Barrett v. Rogers, 7 Mass., 297; Graves v. Harwood, 9Barb., 477; Dickerson v. Seelye, 12 Barb., 99; Price v.Powell, 3 Comst., 322; Maryland Ins. Co. v. Ruden'sAdmr., 6 Cranch, 338; Berkley v. Watling, 7 A. E., 29.) The contract, so far as it is evidenced by the bill of lading, is not liable to be thus affected by parol evidence. (Creery v. Holly, 14 Wend., 26.) There is no reason, and no direct authority, for holding that a bill of lading can be contradicted as to the condition of the goods when they are not at the time of shipment in a situation to be inspected, and that a different rule prevails when the goods may be seen and handled by the ship-owner. If it is a part of the contract, then in no case, in the absence of fraud, can it be varied by parol; if it is a receipt, then it is subject to all the rules by which that class of instruments are governed. The contract is merely to deliver in the like good order as received, and when the condition is ascertained, either by the admission in the bill of lading or proof aliunde, the duty of the party is fixed.

The other error alleged is the allowance to the plaintiff on full freight of the corn to Pecksport, he having delivered it to the defendant at his request ten miles short of that place. The contract was an entire contract. The plaintiff was bound to deliver the corn at Pecksport as a condition precedent to the receipt of his freight. The condition being for the benefit of the defendant, he might waive it, and the referee has found that he did so, but that did not release him from the performance of his part of the agreement. He could only be relieved from that by the assent of the plaintiff, and no such assent is found by the referee, and if we could look into the evidence we should see there was no evidence to warrant any such finding. The plaintiff was entitled to the full contract price as for carrying the corn to Pecksport, as he was ready and offered and had a right to do. Argument cannot make the proposition more plain.