
    Pennsylvania Railroad Company, Appellant, v. Frederick Reifel and Kate Reifel, Respondents.
    (Supreme Court, Appellate Term, First Department,
    June, 1915.)
    Carriers — of merchandise — action to recover freight charges against consignor of goods — when parol evidence inadmissible.
    In an action by a carrier against the consignor of goods to recover freight charges, parol evidence that plaintiff agreed to accept the goods on condition of collecting said freight charges from the consignee is inadmissible as tending to vary the terms of the bill of lading.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of defendants, after a trial by a judge without a jury.
    Burlingham, Montgomery & Beecher (N. F. George, of counsel), for appellant.
    John F. Pheelan, for respondents.
   Bijur, J.

Plaintiff brings suit for freight changes, against defendants as the consignors of certain goods shipped from the city of New York to Bear Creek, N. C. The defense is that the goods were shipped on condition that the consignee should pay the freight charges and that plaintiff neglected to collect the same from the consignee.

Plaintiff objected to the testimony attempted to be offered by defendants of plaintiff’s agreement to accept the goods on condition of collecting the freight-charges from the consignee as being parol testimony tending to vary the terms of a written instrument, namely, the bill of lading, among other cases, citing Portland Flouring Mills Co. v. British & Foreign Marine Ins. Co., Ltd., 130 Fed. Repr. 860. I think that this objection was good and should have been sustained. But apart therefrom, there is no evidence that any such parol agreement was made. The only witness on behalf of defendants testified that he had personally delivered these goods to plaintiff to deliver them to the'consignee and to pay for the charges.” This is- far from establishing an agreement on the part of the plaintiff to accept the goods on condition of collecting the freight charges from the consignee.

Further, defendants claim that as the bill of lading contains a printed instruction ‘ ‘ if charges are to be prepaid, write or stamp here ‘ to be prepaid ’ ” and there was no such stamp thereon — that this is proof of plaintiff’s agreement; but the mere fact that charges were not to be prepaid does not establish an agreement on the part of the plaintiff to look to the consignee for payment of the freight.

Guy and Page, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  