
    Ezra Benjamin v. Alexander Sinclair.
    Charleston,
    Feb. 1829.
    The acknowledgement in a bill of lading, that the goods were shipped “ in good order and well' conditioned,” is conclusive against the master and owner, as to the external order and condition of the goods at the time of the shipment, unless there be evidence of fraud, or mistake.
    Tried before the Recorder in the City Court of Charleston, at January Term, 1829.
    The plaintiff was master of a Georgetown coaster, and this was a summary process for the freight of sundry bales of cotton, shipped in his vessel at Georgetown, and consigned and delivered to the defendant in Charleston. The defendant pleaded tender as to part, and paid the money into Court; but claimed as a discount to the residue the amount of a loss sustained by damage of the cotton, and the expenses of repacking. It appeared in evidence, that the cotton had been brought principally on deck, and that when lauded, it was soaked with water, the bagging much torn, and parts of the cotton damaged; that by defendant’s orders it was sent to a packer, who opened the bales, separated the damaged cotton from the sound, mended the bags, and repacked the cotton; and that the loss; of cotton, and the expenses of repacking amounted to the sum claimed by de-j. , ,. ' fendant as a discount.
    The plaintiff’s counsel offered to examine witnesses to prove that the cotton was wet, torn, and in bad condition, when it was received on board; which was objected to on the ground, that plaintiff could not be permitted to contradict"his written acknow-ledgement in the bill of lading that the cotton was “ shipped in good order and well conditioned.”
    The Recorder sustained the objection, for the following reasons, stated in his report of the ease.
    The exception to the rule “ that parol evidence cannot be received to contradict, alter, add to, or diminish a written instrument” in favour of receipts, has never been extended to any other than receipts for the payment of money, nor in my opinion ought it to extend further. A pecuniary receipt is not a contract ; it is merely evidence of payment and satisfaction, and for that reason, it has been allowed to be impugned. But the rule even as to them was formerly otherwise ; and it was not till the year 1788, when the case of Straton v. Rastall, 2 T. R. 366, was decided, that a receipt was allowed to be contradicted : and that for a singular reason. It was then held, that a party, who with another had signed a joint receipt, might show that the other received the money and not himself, because such was the rule in equity, and assumpsit was an action founded on equitable principles. Other cases soon followed, but the English Courts at length settled down on this principle; that if the receipt was given with full knowledge of all the circumstances, there being-no misapprehension, fraud or imposition, it is a conclusive bar. See Alner v. George, 1 Camp. 392, and Bristow, et al. v. Eastman, 1 Esp. Rep. 172. Even, therefore, if this case be governed by the same rules which apply to a receipt, as the plaintiff knew all the circumstances and signed through indifference or carelessness, it would operate as a bar.
    The American law will be found to follow pretty much in the same train. Some of the principal cases are the following.
    In Ensign v. Webster, 1 Johns. Ca. 145, it was held, that a receipt for money is not conclusive when there is a mistake.
    
    
      Ia House v. Low, 2 Johns. 378, a receipt in full was allowed to be proved to have been on condition.
    In M'Kinstry v. Pearsall, 3 Johns. 320, it was held, that a receipt is open to explanation not directly contradictory to, but consistent with it, or to shew a mistake, fraud, or imposition in obtaining it.
    The same point was decided in this State, in Barton v. Dunlap, 2 Mill, 140.
    In Tobey ». Barber, 5 Johns. 68, it was ruled, that a receipt in full may be explained by parol, so as to show that part thereof was for a note, which afterwards proved bad, and was consequently no payment.
    And the same point was again ruled in Putnam v. Lewis, 8 Johns. 304. and in Johnson v. Weed, 9 Johns. 310.
    The doctrine, as far as it has been recognized by the Courts of this State, will be found in M'Dowall & Black v. Lemaitre, 2 M‘C. 320, where it was held, that a receipt is to be construed according to its most obvious import, and will be considered final and conclusive between the parties when it purports to be so, unless some satisfactory and clear evidence shall be produced of error or mistake.
    
    But a bill of lading is not a mere receipt, it is a special contract between the master for himself and owners, and the shippers. It is an important commercial instrument conveying the right of possession and title t.o millions of property. It is by the custom of merchants negotiable by indorsement, like a bill of exchange, and vests the property in the consignee, or his indorsee; and it binds the owner of the ship as well as the owner of the goods. See Lickbarrow v. Mason, 2 T. It. 63. Cuming v. Brown, 1 Camp. 104. and Sanderson v. Buslier, 4 Camp. 55, note. Now if parol testimony cannot be received to contradict such mercantile contracts as bills of exchange, policies, and charter parties, except to explain them according to a usage of trade presumed to be known to the parties, why should it be allowed to contradict hills of ladingl Why should a bill of exchange for £50 be unalterable, and a bill of lading for £5,000 worth of property perhaps bullion, he reversable' by parol? Certainly no good reason can be assigned, founded either on considerations of commercial convenience, or on principles of law.
    
      The only cases on the subject that I have found are the two fol-' lowing. The first is thePortland Rank v. Stubbs, etal.6Mass, 422, where it was ruled “ that a bill of lading may be contradicted by evidence, if it was obtained by fraud, or mistake.” Fraud will destroy every contract however solemn ; and for mistake there can be no great objection to open even abill of lading, for justice demands it. But these grounds do not existhere. The other case is Barrett, et al. v. Rogers, 7 Mass. 297. There it was held that “ a bill of lading is conclusive as to the condition of the goods when shipped, when all parts of the package, &e. were open to inspection, and no fraud or imposition practised ; but where the exterior only was visible, and neither the interior, its quality, nor condition could be known to the master who signed the bill, but from the representation of the shipper, the bill of lading was only prima facie evidence, and might be rebutted.” This decision conforms with the true construction which has always been put on these words in a bill of lading, namely, that they mean that the cases, packages, bales, &c. are externally in good condition when received, and are to be delivered “ in like good order:” but as far as it applies to the case now before the Court it excludes the testimony ; for here the bales were torn, and the contents could be inspected, and the damage seen, at the time of shipping, according to the very witnesses offered by the plaintiff. Butin the case last cited, the master was imposed on by the representation of the shipper, and therefore the case carné within the principle of fraud.
    
    It is easy for the master to note the external condition of the goods in the bill of lading; and if, with the.bales damaged before his eyes, he is so regardless of the truth, as to sign a contract for their delivery in good condition, he has only himself to blame, if compelled to abide by the consequences of his act. The law has no rule, that I am aware of, by which an adult is intitled to protection against his own negligence. If such testimony can be adduced to contradict a bill of lading except for fraud, it will be a fruitful source of embarrassment to commer--cial men. The number of packages and the freight to be paid will as likely become.objects of dispute, though specified in the contract, as the condition of the packages; and all the mischiefs which the law has endeavoured to shut the door against, when it declares that a written agreement shall not be impugned by swearing, will then be introduced.
    His Honor decreed for defendant, and plaintiff now moved to set aside the decree, on the ground that the evidence offered, ought to have been received, as the bill of lading, although pri-ma facie evidence, was not conclusive.
    Fkost, for motion.
    Gibbs, contra.
    
   Nott, J.

delivered the opinion of the Court.

There is no question perhaps, on which it would be more difficult to reconcile the decisions, both in England and the United States, .than the one now under consideration. The rule, that a written contract cannot be contradicted, varied, or explained by parol, is coeval with the first principles of the common law. It has been frequently recognized by our Courts, and held to apply as well to simple contracts as to deeds.

And it would be difficult to give a reason for any distinction. A simple writing can no more change by time than a deed, and it furnishes the same same security against the treachery of slippery memory.” A receipt for money, it is said forms an exception to the general rule; and some of the cases have gone very far on that subject, and perhaps our Courts have discovered an inclination to go that way. But I think it is time to stay our hand. We must not suffer a rule of such universal application, and one founded on the.soundest principles of philosophy and good sense, to be invaded. We have suffered accounts to be examined which had been closed by a receipt, for the purpose of detecting and correcting errors. But we have never suffered a receipt to be directly contradicted. In the case of M'Dowall & Black v. Lemaitre, 2 M‘C. 320, it was held, that a receipt was to be received as prima facie evidence of what it purported, and that the party who would impeach it must show some error or mistake in the settlement. I still-remain satisfied with the rule there laid down, and am not disposed to extend it farther. Nor do I see any good reason why a bill of lading should not be governed by the same rule. To suffer a person to contradict his own written declaration, would go to destroy all the security intended to he afforded by written instruments. Every instrument of writing, however, must be construed with reference to the object of its execution. A bill of lading implies nothing more than that the articles were, in appearance, in'good order. It does not extend to the quality of the material in which it is enveloped, or to secret defects of the article itself. It would therefore have been competent for the plaintiff to have shown, in this instance, that the bagging was rotten, so that it could not sustain the ordinary exposure of the voyage, or that the cotton was damaged within. The evidence offered was that the bags appeared, when received, to be in the same ruinous condition as when they were delivered, which went to contradict the written declaration of the party himself, and was therefore properly rejected.

The Court concur in the view of the subject which has been taken by the Recorder, and the motion is therefore refused.  