DocketNumber: Docket No. 108
Citation Numbers: 202 Mich. 298
Judges: Bird, Brooke, Kuhn, Moore, Ostrander, Steere, Stone
Filed Date: 7/18/1918
Status: Precedential
Modified Date: 9/8/2022
(dissenting). This is an action instituted by the plaintiffs as copartners doing business as Harmon & Brennan, but upon the trial of the case, on motion of plaintiffs’ attorneys, the allegation as to their being copartners was stricken from the declaration, so that the action proceeded with the plaintiffs as individuals against the defendant company.
“And being so desirous they entered into a specific contract with the said Michigan United Traction Company, defendant herein, through its agents and representatives, to receive the said score board, supplies and appurtenances aforesaid properly crated and boxed, in the city of Kalamazoo, Michigan, on, to wit, the 17th day of September, 1915, and to deliver the same to the order of the plaintiffs herein in the city of Detroit not later than the morning of the said 18th day of September, for a consideration to be paid to said defendant. * * *
“And relying upon the said promises and agreements of the said defendant to so transport the same to the said city of Detroit and have the same there on the morning of the said 18th day of September. * * *
“Plaintiffs further allege that relying upon its contract with the said defendant, * * *”
The trial judge, in the opinion filed in deciding the motion to direct a verdict, said:
“It appears that the bill of lading was signed by the witness, George Harmon, on behalf of the plaintiffs and the proper agents of the defendant company in its behalf. * * *
“He was allowed to testify over the objection of the defendant to an alleged conversation with the agents of the defendant prior to, and coincident with the delivery of the board for shipment and the signing of the bill of lading by defendant’s agent and himself as the agent of the plaintiffs, to the effect that the defendant’s agent absolutely guaranteed delivery of the board at Detroit at seven o’clock a. m. September 18th. * * *
“It is very apparent that the declaration was framed upon the theory of a specific, oral contract and that the bill of lading was then considered merely a receipt for the property. It is equally apparent that that position was untenable under the proofs which showed conclusively that the bill of lading constituted the contract between the parties.”
“No carrier is bound to transport said property by any particular train or vessel, or in time for any particular market or otherwise than with reasonable dispatch, unless by specific agreement indorsed hereon.”
The trial judge did submit to the jury the question of whether or not the carrier had transported the property in question with reasonable dispatch, in accordance with the terms of the bill of lading. It is contended that the conversation had between Harmon and the agent of the defendant company was admissible as bearing upon the question of what constituted reasonable dispatch under all the circumstances surrounding the transaction. In denying the motion for a new trial, the trial judge was of the opinion that the admission of this testimony was error and prejudicial, and with this we agree. It is clearly apparent from a reading of the declaration that the theory upon which this case was started is, as was indicated by the trial judge in his opinion passing on the question of directing a verdict, that a specific oral contract was entered into between the parties upon the 17th of September, providing that the goods should be delivered at destination on the 18th following, and it was not until the case came to trial that a different theory was insisted upon. The rule is well settled that parol evidence is not admissible to vary the terms of a bill of lading, and the conversation testified to by Harmon, if admitted, would be clearly an effort to establish a special agreement as to delivery of the property in addition to the agreement contained in the bill of lad
“Where no time of performance is expressed in a bill of lading, the instrument is not on that account to be regarded as incomplete, so as to admit proof of a distinct and separate agreement as to time. In such case the parties are presumed to have intended that the carriers’ obligation as to the time of performance. shall not extend beyond that imposed on it in law in all undertakings for the transportation and delivery of goods, which requires no more than that the same be done without unreasonable delay. This implied agreement is as much a part of a bill of lading silent as to the time of performance, as if expressed in it in so many words; and the rule which forbids the introduction of parol proof to vary the terms of a written instrument excludes evidence of a prior or contemporaneous parol agreement that. the goods shall be delivered within a definite and specific time.”
See Central Railroad Co. v. Hasselkus, 91 Ga. 382; McElveen v. Railway Co., 109 Ga. 249. This rule has been approved in this State in Sloman v. National Express Co., 134 Mich. 16, which case is cited with approval in Sturges v. Railway Co., 166 Mich. 231. In a case properly brought the question of whether or not under the terms of the bill of lading the property had been transported with reasonable dispatch would unquestionably be a question of fact for the jury under all the circumstances of the case. See 10 Corpus Juris, p. 286. In the instant case, however, we agree with the trial judge, because under the declaration as filed and the proofs as submitted, plaintiffs sought to enforce a special contract of carriage outside of the bill of lading, which, under the authorities, we are of' the opinion cannot be done. Having accepted the bill of lading, the plaintiffs are bound by the terms thereof and cannot seek to vary its terms as to carriage unless the special agreement is indorsed thereon in accordance with the specific terms of the contract.
The judgment should therefore be affirmed.
The conversation complained of was competent as bearing on defendant’s understanding of what was a reasonable time; and was not objectionable as varying the terms of the bill of lading. There was no variance between pleadings and proofs, it not being bad pleading to aver a time for performance where none is named in contract. The judgment should be reversed, and a new trial granted, with costs to appellants.