
    Despatch Line v. Glenny & Co.
    The petition averred that plaintiffs delivered to defendant in New York, one case of plate glass, which defendant received and agreed for a reward to be paid it, to transport to Cincinnati, and there safely deliver to plaintiffs; that when so delivered two lights were badly broken by reason of defendant’s negligence to the damage, etc. The answer denied “each and every” of said averments. At trial plaintiffs gave in evidence part of the deposition of H. This stated that a case containing plate glass in good order was shipped. In another part of the deposition H. testified that he never notified defendant that it was plate glass; and that defendant at the time gave a receipt for “ one case of rough glass.” A copy of this receipt (the original having been identified by the witness) was duly attached to the deposition by the officer. Next above the words “rough glass” was plainly printed: “ The actual contents of packages must be stated on this receipt.” At a proper time the defense offered to put in evidence said part of the deposition and said copy, but the court excluded it.
    
      Meld: The evidence excluded tended to prove part of the res gestae of the alleged delivery; and to show that defendant did not receive and agree to transport any plate glass.
    Error to the District Court of Hamilton County.
    On February 21, A. D. 1878, in a case appealed from a justice’s court, William Glenny & Co. filed a petition, in Hamilton common pleas, against the Great Western Despatch South Shore Line. Besides other averments and a prayer for judgment it contained the following:
    “ That on the eleventh day of June, 1877, they delivered to the said defendant in New York one case of plate glass which the said defendant received and agreed, for a reasonable reward to it to be paid by these plaintiffs, to transport to Cincinnati aforesaid, and there safely deliver the same to these plaintiffs within a reasonable time.
    “ That although a reasonable time has elapsed therefor, the defendant has not safely delivered said merchandise to these plaintiffs, but on the contrary, when delivered two lights of the said glass were badly broken by reason of the negligence of the defendant, whereby said plaintiffs have been damaged in the sum of one hundred and seventy-nine dollars.”
    The answer read thus:
    “Now comes the defendant and answers the petition of the plaintiffs, and for answer says, that it knows nothing of any of the facts in said petition alleged, except that the defendant is a firrh doing business under the law of the state of Ohio, and is a common carrier of goods, wares and merchandise for hire between the city of New York and the city of Cincinnati, and that a judgment was taken against it and an appeal from said judgment taken to this court, as in the petition alleged, and therefore the defendant denies each and every other allegation in the petition contained.”
    At the trial in the common pleas, the plaintiffs read in evidence a part of a deposition of one James Haughey, shipping clerk of the vendor of the plate glass taken by them. This tended to prove that a case of plate glass in good order was shipped. The defendant moved the court to order the plaintiffs to read in evidence the remainder of the examination in chief of said witness, and excepted to the refusal of the court to so order. At a proper time in the trial the defendant offered to read in evidence the remainder of Haughey’s deposition. This contained a statement that witness did not notify the defendant that the case contained plate glass; that he marked the case “ rough glass ” and that at the time the defendant gave a receipt (which was duly identified and attached to the deposition) reading as follows:
    “New Yoke, 11th June, 1877.
    “Received, in apparent good order, by the Cheat Western Despatch, from E. W. Boyd, No. 79 Murray St.,
    
      the following Package, subject to the conditions contained in the Bills of Lading of the GREAT WESTERN DESPATCH.
    
    
      “ This is to be exchanged for the usual Bill of Ladin'g of the Company, notice of the terms of which is hereby admitted; and this property is received subject to all the provisions limiting liability, therein contained.
    
    
      FURL NAME OF CONSIGNEE MUST BE GIVEN ON THIS RECEIPT.
    
    
      The actual contents of Packages must be stated on this receipt.
    
    MARKED:
    
      
    
    
      That he (Haughey) wrote the words “one case rough glass ” in said receipt pursuant to instructions in his employer’s order book. That he afterwards received, in exchange for said receipt, a bill of lading. This original bill was identified by him before the officer and duly attached to the deposition. This was a bill of lading given by the Great Western Despatch Company South Shore Line to William Glenny & Co. at New York, June 11, 1877, describing the goods as “rough glass,” delivered in apparent good order, to be for-warded in like good order (damages from navigation and from fire excepted) to Cincinnati, Ohio, at the rate “ 3d class, 41 cts. per 100 lbs.” * * *- And “subject to the terms and classifications as below.” * * * The following is printed on the face of the bill of lading, at the bottom thereof, to-wit:
    “ CONDITIONS.
    “ All articles entered on this bill of lading shall be subject to and governed by the latest tariff classification, as published by this line and in force at the date hereof, and to the rates properly belonging to such classification ; and the rates, as written in above, shall only apply to such goods as are included in the class opposite, or against which the rate is so written.”
    Immediately above the agent’s signature to the bill of lading was plainly printed,
    “ JESr“ Eor classification, see other side.”
    On the “ other side ” or back of the bill of lading was printed the following (among other classifications) to wit:
    “ ARTICLES. CLASS.
    “Plate glass, too large to be ) loaded in box cars, released, (own- i Pour times first class, ers’ risk), )
    “Plate glass, too large to be loaded in box cars, released, and in car load lots, estimated at 20,000 pounds. j-One.
    “ Plate glass, loaded in box cars, owner’s risk of breakage. J One.”
    
      Haughey also wrote the words “ rough glass ” in the bill of lading. The court refused to permit any of said deposition, or its exhibits, other than the said portion read by plaintiffs’ counsel, to go in evidence. Exception was duly noted'.
    The defendant also called a witness, Enoch Taylor, an agent in its employment, and offered to prove by his testimony that there was a difference in the rate of shipment between rough glass and plate glass; also that the glass referred to by plaintiffs’ witness was shipped on a bill of lading, and, for that purpose, put to the witness pertinent questions, unobjectionable in form, but the court sustained the objections made by the plaintiffs; defendant excepting.
    Thereupon the defendant asked leave, to amend its answer and set up therein a defense, that the glass in question had been shipped on a bill of lading, stating it to be rough glass, and that the rate of shipment of rough glass was less than that of plate glass, but the plaintiffs objected, and the court refused leave so to amend, and defendant excepted.
    Before the jury retired the defendant asked the court to charge the jury as follows, said charges so asked not being embraced or given in the general charge of the court, neither in language, nor in substance: “Before the jury can find for the plaintiffs, they must be satisfied from the evidence, that the plaintiffs, or some one for them, shipped from New York to Cincinnati plate glass as‘plate glass’ and not as ‘ rough glass.’ ” — “ That if the plaintiffs, or their agents, shipped the glass as ‘ rough glass,’ knowing it was ‘plate glass,’ and the carrier accepted it and shipped it, supposing it to be ‘rough glass,’ such concealment of its character by the plaintiffs defeats their right to recover against the carrier for an injury to it, unless the plaintiffs can show gross negligence on the part of the defendant, in the transportation of the glass.” To which charges the plaintiffs objected, and the court refused to give the same, to which refusal the defendant excepted.
    A verdict for the plaintiffs was rendered; a motion for a new trial overruled, a bill of exceptions taken and judgment rendered on the verdict. On petition in error the district court affirmed the judgment, which we are asked to reverse.
    
      Durbin Ward, for plaintiff in error.
    1. Under the general issue, are we allowed to prove the existence of the bill of lading, which shows the glass to have been shipped as “ rough glass,” or, must we plead specially that the goods were shipped on a bill of lading, before we are at liberty to prove it? We insist, that when the plaintiff alleges that he delivered “plate glass” and we deny it, that we can show that he represented himself as shipping “rough glass,” and took a bill of lading for it as such, for the purpose of showing that the shipper committed a fraud on the defendant by inducing it to receive a •superior article, requiring higher freight and more care, and ship it as an inferior article at lower rates and subject to less care. And we insist we could prove it on another •ground. Having denied the delivery of “plate glass,” and the plaintiff having proved, or offered evidence which he claimed to be proof that he delivered “ plate glass,” we are surely allowed to contradict such testimony by showing that he offered the glass for shipment as “ rough glass,” and acknowledged it to be such by taking 'a bill of lading for it as such. Such bill of lading would surely be competent evidence to weaken the force of plaintiff’s evidence that he delivered such plate glass. What rule of law requires us to plead the bill of lading specially ? The question is, what was the contract? The evidence of the contract is the bill of lading, and surely we are not bound to plead mere evidence. Or, if the plaintiff claims that the evidence of the contract — an implied contract — was the delivery of the article to a common carrier whose duty it was to ship it, and the delivery by mere implication is all he proved in this case ; then, we insist, we have a right to controvert the implied contract, even under the general issue denying delivery, by showing that there was an express contract in writing and ' thus showing that the implied contract, claimed to arise by mere delivery, was not the contract on which the goods were shipped. Under the general issue, the plaintiff offered evidence to prove, and claimed that it did prove an implied contract by mere delivery; now cannot the defendant offer evidence to prove an express parol contract, and if he should succeed, would not that defeat the plaintiff’s action entirely, because he can only recover on his own allegations, to wit: the implied contract ? Or if he could recover, would it not be on the actual express parol contract ? And why would not this be so, if the defendant under the general issue, denying the contract alleged in plaintiff’s petition, should prove a contract in writing evidenced by a bill of lading? Why would he have to plead it specially? When a defendant denies the contract sued on, he makes that denial good by proving that the shipment was made on another contract and not on the one sued on. We insist that the authorities fully sustain this doctrine. Davidson v. Graham, 2 Ohio St., 131. And see Simmons v. Greene, 35 Id., 104; Dean v. Yates, 22 Id., 389; Thatcher v. Heisey, 21 Id., 668; Hill v. Supervisor, 10 Id., 621; Satchel v. Doram, 4 Id., 543; Johnson v. Moss, 45 Cal., 515; Pomeroy on Remedies, § 557.
    2. As to whether fraud may be proven under the general issue, see Pomeroy on Remedies from § 642 to § 691; 1 Wash. Pl. & Pr., 177-8; Van Santford’s Pl., 252-7; 2 Saund. Pl. & Ev., 527; 1 Tidds’ Pr., 650; Doug., 433; 2 Term, 551; 2 Campbell, 272; 1 Chitty’s Pl., 471-2.
    3. We claim that in ruling out the rejected portions of the depositions and exhibits there was error. We claim that when a deposition is filed it is evidence for both parties, and if it is at the trial on file unexcepted to by either party, that it is evidence in the cause, and either party can read it in evidence so far as it is competent evidence on the issues joined. A party having taken a deposition can no more withdraw his questions or the answers to them, than he can, after the witness has testified in open court against him, withdraw the testimony. He has put the testimony into the case to be tried and can never withdraw it. It is testimony for the other side if he wishes to use it. Devin
      
      ney v. Jelly, Tappan, 127; Wilson v. Runyan, Wright, 651; Strader v. Day, 2 W. L. M., 388; Calhoun v. Hays, 8 Watts & Serg., 127; 16 Serg. & R., 264 ; Dwight v. Linton, 3 Rob. (La.), 57; Yeaton v. Fry, 5 Cranch, 335; Linfield v. Railroad Co., 10 Cush., 570; 1 Greenleaf on Ev. 322, 323, n. 1.
    
      Ramsey & Matthews, for defendant in error.
    The sole question in this case is whether the defendant ought to have been permitted to prove fraud, as a defense to the action, without pleading it. The plaintiffs alleged that the defendant was a common carrier between New York and Cincinnati, and that they delivered plate glass to it to be carried from New York to Cincinnati, that it was in good order when delivered to defendant, and was broken by defendant’s negligence in transit. The answer is a general denial. It devolved upon the plaintiffs, therefore, to prove the allegation of the petition. The defendant could only disprove it.
    The claim that defendant ought to have been permitted to prove fraud because his answer contained a general denial, and was, therefore, equivalent to the general issue at common law, overlooks the wide distinction between a denial under the Code and the general issue at common law. This distinction is pointed out in the elementary treatises upon Code-pleading. Bliss Code PL, §§ 324, 330, and authorities cited.
    As to the necessity of pleading fraud, as new matter, and the degree of certainty required in such pleading, see note to §§ 339, 352, Bliss Code Pl.
    The introduction of the bill of lading would not have changed any aspect of the case between the parties. It would have left the defendant under the same necessity of proving the breakage to have been without negligence that it was under in the absence of a bill of lading. Davidson v. Graham, 2 Ohio St., 131; Gaines v. Transportation Co., 28 Id., 418 ; Express Co. v. Graham, 26 Id., 595.
    No evidence was offered to show such a defense. The bill of lading was not offered for this purpose. It was offered to prove fraud. Being offered for an avowed purpose, it will not be considered with reference to admissibility for any other purpose. Sickman v. Lapsley, 13 S. & R., 224.
    The claim that the record presents a case of variance is untenable. If the plaintiffs, having alleged a general contract, had introduced proof of a special contract, the case would have been analagous to Davidson v. Graham, and it would have been necessary to ascertain the difference between the code and the common law upon the subject of variance. But that is not this case. The plaintiffs pleaded and proved a general engagement. The defendant, upon whom the duty was cast to plead and prove a special contract, offered to prove it without having pleaded it. The plaintiffs did not admit that it was the contract between themselves and the defendant. If an issue had been made up upon it, it would have been a proper subject of oral testimony to show that it was, or was not, the contract. But, under the code, variance is immaterial. Sec. 5294 Rev. Stats.
    Whether the court erred in refusing to allow the defendant to read the remainder of plaintiffs’ deposition not read by the plaintiffs, must be determined entirely with reference to its competency under the pleadings, and as it was offered to prove fraud, which was not in issue, it was properly rejected.
   Granger, C. J.

In support of the ruling of the trial court it is urged that the answer is like the plea “ not guilty” in an action against a carrier for the negligent loss of goods delivered to him to be carried for hire, and that under it proof that the owner of the goods misrepresented them is inadmissible. But the reason of the holding referred to is clearly stated by Tindal, C. J., in Webb v. Page, 6 Scott N. R., 955, and same case in 6 Manning and Granger, 200. The words “ not guilty ” applied to the wrongful acts charged upon the defendant by the declaration, and only operated “as a denial of the loss and damage, and not of the receipt of the goods by the defendant as a carrier for hire, or of the purpose for which they were received.” This was under a rule. See Pleadings in Particular Actions, IV. Of course, then, no evidence to establish the contract, or the delivery, was required of the plaintiffs, and the defendant could not dispute those facts. But the answer here expressly denies the delivery, the receipt of, and the agreement to transport the goods described in the petition.

Angelí on Carriers, 5th ed., sec. 265, says, the carrier “ ought either to plead the misrepresentation specially, or traverse the acceptance of the goods for the purpose of being carried.”

The defense elected to make such traverse. Glenny & Co., although holding the bill of lading, which was the real contract, refused to exhibit it to the carrier when they demanded payment of the damage, and framed their petition upon a contract made by delivery and acceptance of goods. If the claimants, with the written contract in their hands, failed to declare upon it, they ought not to complain if the defendant declines the attempt to set out a contract of which he has been denied an inspection, and is content with a denial of the contract alleged in the petition.

Glenny & Co. understood that they must prove the contract and delivery, and began to do so. The witness who shipped the case marked it “rough glass,” although he knew it contained plate glass; did not inform the carrier that it contained plate glass ; took the carrier’s blank receipt with its plain notification that “ the actual contents ” must' be stated “ on this receipt; ” filled in the words “ one case rough glass,” and obtained the assent of the carrier to such receipt.

Said Baron Parke in Walker v. Jackson, 6 Mees. & Wels., 169: “ And I now take it to be perfectly well understood, according to the majority of opinions upon the subject, that if anything is delivered to a person to be carried * * it is the duty of the person who receives it to ask questions. If they are answered improperly, so as to deceive him, then there is no contract between the parties.”

The printed notice in the receipt asked, “ What are the actual contents of this package ? ” Haughey’s handwriting on the receipt and his inark on the case answered, “ Rough glass.” That this materially deceived the carrier is made sure by the same deposition.

The case was received “ subject to the conditions contained in the bills of lading of the Great Western Despatch.” Under those conditions the carrier’s pay for transporting plate glass would be larger than for rough glass; such a case, loaded in box cars, would be at “owner’s risk of breakage ” unless he could prove actual negligence by the carrier or its employees. The' carrier had a right to know the nature of the goods in order to determine the amount of care required to defeat any charge of negligence.

The trial court permitted the witness to relate so much of what was said and done in the attempt to deliver as tended to support the petition, and- refused to allow the jury to hear the remainder of his history of that delivery. To complete a contract, or a delivery, something must be done by both sides. One party alone cannot complete either. If a shipper secretly places a package in a freight car and it is lost or destroyed, he cannot, on those facts alone, establish a contract liability on the part of the carrier. If he hands to a freight agent a box marked “ fifty pounds sugar,” and takes a bill of lading, or receipt, so describing the package, can he hold the carrier responsible on contract for diamonds concealed in the sugar, in case of loss ? It seems clear to us that at the trial below the defense had full right to show all that was said and done material to the questions, “Was there a delivery of plate glass?” — “Was plate glass received by the carrier?”— “ Did he undertake to transport plate glass ? ” Upon the state of facts shown by Haughey’s deposition these questions ought to have been answered in the negative. Although plate glass was actually in the carrier’s hands, it was there without his knowledge or consent. Hence the defendant did not “ receive ” it. Taking the evidence admitted and excluded together, it proved that no such contract as the one sued on was made by the carrier.

We think the plaintiffs were not bound to read the whole of the deposition. Upon their declining so to do, it became the right of the defense to read all of it that was competent evidence, under the pleadings, in the usual order of procedure m a trial.

It is unnecessary to say anything upon the charge to the jury, or upon 'the question, “Was the refusal of leave to amend the answer an abuse of judicial discretion?”

Judgments below reversed, and cause remanded for a new trial.  