
    Jacob L. Wayne v. Steamboat General Pike.
    Jn bills of lading, where the terms used have, by usage, acquired a particular signification, the parties will be presumed to have used them in that sense,
    'But usage will not be permitted to control the terms used, unless it is established by clear and satisfactory proof.
    This is 'a writ of error directed to the superior court of Cincinnati.
    The action below was assumpsit, brought by the plaintiff in •error, against the defendant, upon two bills of lading, the same in form, one of which is as follows:
    “ Shipped, in good order and well conditioned, by R. Mitchell ,& Co., for account of J. L. Wayne, on board the good steamboat General Pike, whereof is master, for the present voyage, Oapt. Ross, now lying at the port of Cincinnati, and Abound for Memphis, the following articles marked and numbered as below, which are to be delivered without delay, in like good order, at the port of Memphis (the unavoidable dangers of the river only ■excepted), unto J. W. Hayne, or to his or their assigns; he or they to pay freight for the said goods, at the rate of thirty-four ■dollars for lot.
    “In witness whereof, the owner, master, or clerk of the said boat hath affirmed to three bills of lading, all of this tenor and date, one of which being accomplished, the others to stand void.
    “Dated at Cincinnati, November 5,1844.”
    The bill of lading, below the list of articles shipped, was signed J. W. Strader, clerk.” The breach alleged was, that the goods were not delivered to the consignee.
    
      It was admitted on the trial, that the articles shipped, were not delivered to the consignee, Hayne, but were left at the wharf-boat ■of A. B. Shaw & Co., at the Memphis landing, and never came into the possession of Hayne.
    The plaintiff having rested, the defendant, by her counsel, proposed to offer evidence to show by parol testimony, that by the known established usage and custom of delivering goods at Memphis, shipped on steamboats at Cincinnati, bound beyond Memphis, to be delivered to consignees at Memphis, Tennessee, it was a good and sufficient delivery if the boat delivered such •goods to A. B. Shaw & Co., at their wharf-boat at the Memphis landing, without any direct notice, by the boat to the consignee, of the arrival of such goods ; to the receiving of which testimony to prove such usage or custom, the plaintiff objected, as tending to vary the liability of the boat as fixed by the terms of the bill of lading. The objection was overruled, and the testimony ■admitted.
    After the testimony was closed, the plaintiff asked the court to ■charge the jury, that if the defendant had shown that it was the custom or usage for steamboats to deliver goods at Memphis to A: B. Shaw & Co., at their wharf-boat, *without giving notice to the consignees, if at Memphis this custom could not be binding on the plaintiff, nor affect his right to recover; but the court refused to give such charge in terms as asked by the plaintiff; but ■did charge the jury, that if, by the usage or custom of Memphis is meant a local usage at that port, as contradistinguished from a known and established usage of trade, of shipping and transporting goods from certain ports to the port of Memphis, then the court charged as asked by the plaintiff; but if, by a known and ■established usage of the trade in question, a delivery at a wharf-boat at the port of Memphis, without notice to the consignee by ■the boat, is a delivery to the consignee, then such delivery, according to the known and established usage, would discharge the -carrier; to which refusal to charge as requested, the plaintiff excepted.
    The jury having found a verdict for the defendant, the plaintiff moved for a new trial, assigning for cause the ruling of the court aforesaid; and also, that under the law as laid down by the court, the facts did not warrant the verdict, there being no satisfactory .proof of the usage or custom sought to be established by the defen dank. The court overruled the motion, and rendered judgment upon the verdict.
    It is alleged here, that the court erred in admitting testimony to establish the supposed usage, and in refusing to grant a new-trial.
    There were other points made during the progress of the trial, as to the competency of testimony, and as to the charge of the court, but they are all involved in the foregoing.
    The testimony to establish and to dispi’ove the alleged custom or usage, is incorporated in the bill of exceptions, but it is not necessary that it should be inserted hero, to a full understanding of the case.
    Fox & Lincoln, for plaintiff in error, contended:
    1. That a bill of lading is a special contract, and can not be altered or varied by parol testimony, of usage, custom, or otherwise.
    *2. That this contract imposes a duty on the carrier to deliver the goods personally, at the usual landing-place of boats visiting the port of delivery, if the consignee is to be found, or by giving him notice that the goods are ready for delivery.
    3. If the consignee can not be found or is absent, it is the duty of the carrier to' deposit the goods with some safe person, to be delivered to the consignee, or to be kept for him.
    4. That usage or custom can not dispense with the necessity of delivery, or of notice of the arrival, and a notification to the consignee, that the goods are at the wharf for him, and therefore the evidence to prove such usage was improperly admitted.
    5. If the evidence was admissible it did not establish a usage, therefore a new trial ought to be granted.
    In support of these propositions they submitted the following authorities:
    Babcock v. May et al., 5 Ohio, 346; Ostrand v. Brown, 15 Johns. 39; Story on Bail. 358, 543; 2 Kent’s Com. 604; 2 Greenl. Ev., sec. 250; 2 Wash. C. C. 24.; 14 Pick. 144; 1 Grreenl. Ev., sec. 292; 3 Met. 363; 1 Phil. on Ins. 48, 483; 2 Johns. 335; 2 Penn. 240 ; 2 Burr. 1222; 2 Marsh on Ins. 707; 10 Mass. 26; 21 Pick. 108; Ib. 483; 8 Serg. & Ra. 533; 17 Wend. 311; Smith on Merc. Law, 170; Story on Bail. 347; 3 Campb. 414; 14 East, 475 ; 4 Term, 581; 5 Term, 387; 2 Esp. 693; Abbott on Shipping, 247; 19 Wend. 235; 21 Wend. 355; 2 Hill, 623; 8 Taunt. 144; 4 Campb. 40; 2 Bos. & Pul. 168; 4 Esp. N. P. C. 177; 2 Campb. 415 ; 2 Stark. 249; 1 Stark. N. P. C. 249; 5 Barn. & Ald. 53; 2 Barn. & Ald. 356; 3 Brad. & B. 177; 4 Barn. & Ald. 21; 1 Duer on Ins. 259, 261, 267, 277, 279.
    King & Anderson, for defendant in error.
    *No argument for the defendant came to the possession of the reporter.
   Birchard, O. J.

A bill of lading is a special contract, and as a general rule is not to be varied or altered by parol evidence. The contract imposes the duty of delivery according to its terms as understood by the contracting parties at the time of entering into the same. Where there is nothing in the nature of the business which is the subject of the contract to control the meaning of its terms, the instrument must be interpreted, and its meaning gathered from the instrument itself, without resort to any parol •testimony.

In reference to bills of lading, where some of its terms, applicable to the business contracted for, have, by the course of trade and the usages of those concerned in it, acquired a particular .signification in reference to an established usage of the trade, a legal presumption arises that the persons engaged in such trade used such terms in their contract according to that acceptation, and in the sense recognized by the trade. The owners of the General Pike claimed that there was a general and well-established usage known to carriers, consignees, and consignors, and all persons concerned in freighting goods by steamboats on the rivers Ohio and Mississippi, by which a contract of lading, to deliver from a steamboat goods to a person residing at Memphis is understood to mean a delivery to A. B, Shaw & Co., owners of a wharf-boat lying in the stream opposite the town, who, by «aid usage, are the general agents of all consignees residing at Memphis.

From the bill of exceptions it appears the attempt was made to establish such a usage, although the proof was objected to. Wo are not prepared to say that the court erred in overruling the plaintiff’s objections, and allowing the defendant to introduce proof in order to establish this supposed usage and its reasonableness. Nor do we mean to say that, on some of the points ruled by the court, it is quite clear that error did not intervene. But assuming that *thero was nothing erroneous in the decision on all the points ruled in the admission and rejecting of testimony, and also in the instruction given to the jury, we have come to the conclusion, with entire unanimity, that the superior court did err in refusing to grant a new trial.

The usage attempted to be established by proof was, to say the least, of a very extraordinary character—one that might in practice become very injurious to the interests of shippers, consignees, and owners; and its supremacy should not be allowed to be established without clear and satisfactory proof of its actual existence, and of the general acquiescence therein by the public. If it is convenient to owners of steamboats and consignors to land goods at wharf-boats without notice to the consignee, and they can not conduct their business without being allowed this privilege, it is not difficult to provide, in their bills of lading, a form to meet the case.

Now what did the proof show ? Not that any such usage as that contended for was understood generally at either Memphis or Cincinnati, nor that it had been universally the custom. Several merchants of Cincinnati engaged in shipping goods to Memphis had never heard of such a usage. They state that when they consign goods, they consign them to the person to whom they belong, unless specially directed to have them left at the wharf-boat of Shaw & Co. The other merchants, who spoke of having known that such a practice prevailed among captains of transient-steamboats, speak of Shaw & Co. refusing to receive goods of boats that would not make their bills good, and that they were-not authorized to open bills of lading or letters, except for certain persons residing at Memphis. Several persons, also residing at Memphis, say there is no such usage known, although steamboats generally deposit at the wharf-boat and pass on. Indeed, without-, going minutely through the great mass of testimony, it is sufficient lor us to say, in general terms, that the most that could be made of the evidence, and all that it established, was, that ^steamboats have been for several years in the practice of landing goods at places upon the river where wharf-boats are stationed, with the keepers of the wharf-boat, and intrusting them •with the duty of the delivery to the consignee, and then passing on without further care than to secure their freight; and that where the goods have eventually come to the proper hands, and no difficulty has occurred, no one has made any complaint. This, instead of proving a custom which is to control the torms of a bill of lading, and become a part of the law of the contract, is proving a very loose practice, which can not terminate the responsibility of the carrier, which the courts ought to aid the proprietors of steamboats in correcting for the benefit of community. If captains of steamboats will land goods thus, the owners of the boat must be made to understand that they are responsible for the loss, provided the goods fail in coming to the hands of the true owner or consignee. If a loss happen, they can not force the consignor to look to the proprietor of the wharf-boat for remuneration. He may make the steamboat answerable for the damage. If not satisfied with this risk, boats can decline the responsibility of assuming it, and stipulate, by their bills of lading, for a delivery on the wharf-boat, and at no other place, as the proof shows that many have been in the practice of doing, A new trial should have been granted, on the ground that the evidence not only did not establish, but strongly disproved the defense that was attempted to be made. Judgment revorsed.  