Graves v. Harwood

By the Court, Welles, J.

It is insisted on the part of the defendant, that Clark & Coleman, the consignees and owners of the flour, were primarily liable for the payment of the freight, and that the plaintiff should first have exhausted his remedy against them.

It would seem that upon principles of common justice, the' plaintiff ought to recover in some form of action, against either the consignor or consignees. The question is, whether he has a right of action against the defendant, in the form he has adopted. It is a case where the defendant has had the benefit of the payment of the price of the flour by the plaintiff; and if he should be compelled to refund it, complete justice would be done between all the parties concerned. But such result, however desirable, would cost too much, if it has to be procured at the expense of violating any settled rule of law. It is proper, therefore, to inquire Avhat were the rights, remedies and liabilities of the plaintiff as a common carrier, in reference to the cargo of flour in question, and the freight for carrying the same, and his relation to the consignor and consignees.

The question who were the parties to the contract of shipping, depends upon who Avas the OAvner of the flour at the time the freight was earned. The rule is, that where the entire property of the goods remains vested in the consignor, he is to be regarded as the party who contracts Avith the carrier. (Angell on the Law of Carriers, § 495.) If goods be delivered to a carrier on behalf of the consignee, the property in the goods vests in the consignee upon such delivery to the carrier. (Id. § 497.)

By the arrangement between the consignor and consignees, as appears by the evidence of the witness Emerson B. Harwood, the consignor shipped flour to the consignees, to be sold, and drew against it for an advance. That the flour was sent to them Avith the understanding that the title was to vest in them from the receipt by them of the shipping bill. The consignees had received large amounts of flour from the consignor in the fore part of 1847, upon which they had sustained loss; after which they informed the consignor, that for the future business, if the consignor shipped flo.ur to them and drew upon it, they should expect to do as they pleased with it, and take care of the business at their end of the route, and that the flour should be solely under their direction and control. The load of flour in question was shipped under that arrangement. It appears by the special report of the referee, that the consignor sent a duplicate of the shipping bill by the captain of the boat to the consignees, which was delivered to them by the captain on his arrival with the load of flour at New-York. It follows, therefore, that the defendant remained the absolute owner of the flour until its arrival at its destination, and during the whole time the freight was being earned, and consequently liable to the plaintiff for the freight. That the plaintiff had a lien upon the cargo for the freight makes no difference. It was a right which he might waive, without impairing his remedy by action. He might have delivered the 590 barrels of flour to the consignees, and immediately called upon the consignor for the balance of the freight. He was not bound to pay for the ten missing barrels of flour. Having done so, I doubt very much whether he could sustain any action against the defendant for the money thus paid for them, if the case stopped there, on the ground that it was paid voluntarily and without the defendant’s request. But evidence was given tending to show that Clark & Coleman, the consignees, had accounted with the defendant for the whole 600 barrels; and I think the referee was warranted by the evidence in finding as he has done, that they did so account with him. This was an adoption or ratification by the defendant of an unauthorized payment by the plaintiff for him, and for which I think the defendant is liable to the plaintiff in an action for money paid, or money had and received.

It is objected, on the part of the defendant, that parol evidence was improperly received to show an error or mistake in the bill of lading. The mistake to which the parol evidence related, was in that part of it which stated and admitted the quantity of flour received.

A bill of lading has a twofold aspect, viz. a receipt, and a contract to carry and deliver. It was held in Barret v. Rogers, (7 Mass. Rep. 279,) that a bill of lading was not conclusive evidence as to the condition of the goods shipped. (See also Cowen & Hill’s Notes, p. 1439, note 962.) So far as the bill of lading is a contract, it is undoubtedly conclusive between the parties to it. (Emery v. Holly, 14 Wend. Rep. 26.) But that part of it which is an admission of the number or quantity received, and to which'the contracting part relates, I have no doubt may be explained or contradicted, like any other receipt. There is nothing in the nature of the case to take it out of the rule on that subject. It is well settled that an admission of the payment of the consideration money, in a conveyance of land, may be explained or contradicted, provided the nature of the grant is not thereby affected—and that, between the parties to the conveyance. I thin the parol evidence in this case to show a mistake in the quantify oi flour was properly received.

It is also objected that the action will not lie upon the money counts. I am not able to perceive any objection to sustaining the action for money had and received, or money paid. The defendant has had the benefit of the price paid by the plaintiff for the ten barrels of flour. He is to be deemed to have received the amount in money, which, in equity and justice, belonged to the plaintiff; and there is no reason that I can appreciate, why he should not pay it back to him. I think it in perfect consistency with the theory of the action, to allow the plaintiff to recover in this form of action. {See Brown v. Hodgson, 4 Taunt. 189.) The motion to set aside the report of the referee is denied.