
    Wolfe v. J. Myers & Co.
    Where the owners of a canal boat signed a contract in the form of a bill of lading, by which they agreed to deliver a quantity of wheat to the plaintiff at New York ; it was held, that parol evidence of instructions by the plaintiff's agent, on the same day and before the contract was signed, to send the wheat to a different party at another place, was inadmissible.
    The contract, being signed by the owners and not by the master, was not a bill of lading.
    A bill of lading has a twofold character. It is a receipt as to the quantity laden on board the vessel, and a contract to deliver the same at the place and to the consignee named.
    As a receipt, it is open to explanation between the parties, by parol evidence.
    But in its character as a contract it cannot be altered, varied, or explained by such evidence,
    (Before Oakley, Ch. J., and Vanderpoel and Sandfgrd, J. J.)
    March 15, 16;
    April 21, 1849.
    Tins was an _ action of assumpsit to recover damages for not delivering, pursuant to a bill of lading, a cargo of wheat shipped at Buffalo, by a boat called the Salem; and was tried before tbe Chief Justice, on the 11th of December, 1848.
    The plaintiff read in evidence the following bill of lading or contract, viz.
    “ No.--
    “ Buffalo, June 3, 1847.
    “Shipped in good order, by John T. Noye, on board of canal boat Salem, Troy & Ohio Line, whereof-— is master, the following articles to be delivered in like good order, as addressed.
    
      N. II. Wolfe. ! 2600 Bus. Wheat.
    New York, j Freight to New York, Slots.
    i J. Myers & Co.
    per J. Topping.”
    It appeared that the plaintiff was a wheat and flour merchant in the city of New York, and the defendants were the owners of the canal boat. The wheat had been bought in Buffalo by J. T. Noye, an agent of the plaintiff, and it was shipped under his directions. It was brought to New York by tbe boat Salem, where it was delivered by the defendants’ agents to John B. Wright & Co., June 21, 1841, for account of Imlay cfe Smith of Hartford, Connecticut. Wright & Go. were agents of Imlay A Smith, and were in the habit of receiving wheat from Buffalo for that firm, some of which was purchased by Noye. They sold the wheat in question for account of Imlay & Smith, on the Ttli of July. Two or three -weeks after the sale, Wright & Co. learned from the plaintiff that the wheat belonged to him, and subsequently paid to him the net proceeds. The price of wheat, however, had fallen very materially between the 21st June and 7th July.
    On the part of the defendants, evidence was given to show that uu the same day the bill of lading was signed at Buffalo, and before it was signed, the clerk of Noye, who superintended the shipment, and who obtained the bill of lading, directed Topping, the defendant’s bookkeeper, who signed it, to ship the wheat in question to Imlay & Smith, Hartford, care of Wright & Co., Albany. It appeared that such a direction was entered by Topping at tbe time, in the defendant’s canal-shipping book, and that Topping gave to the captain of the boat a bill of lading corresponding with the book. Some counter evidence was given as to this direction on the part of the plaintiff.
    The judge, reserving the questions of law, submitted to the jury to find the amount of the plaintiff’s damages, if he were entitled to recover; and requested their answer to the questions, 1. Did the clerk of Noye give verbal directions to Topping to send tbe wheat to Irnlay & Smith % 2. If so, was it before or at the time the bill of lading to the plaintiff was signed by Topping ? The jury found that such verbal directions were given by Noye’s clerk, before Topping signed that bill of lading and on the same day; and they assessed the plaintiff’s damages, subject to the opinion of the court, at $1065 78. The cause was brought before the court on a case.
    
      T C. T. Buckley and J. W. Gerard, for the plaintiff.
    I. The plaintiff’s bill of lading is the written evidence of, and-contains the contract, for the breach of which the plaintiff claims to recover. Parol testimony in relation thereto, can only be admitted, upon and subject to the rules of evidence applicable to written instruments. (Creery v Holly, 14 Wend. 26 ; Lickbarrow y. Mason, 1 II. Bl. 359, adopted and approved in Covill v. Hill, 4 Denio 330.) It is more than a mere receipt, and is excepted from the rules of evidence which apply to receipts proper. (2 Phill. Ev.Notes, 216, 217 ; 3d ibid. 1439 and cases; Goodyear v. Ogden, 4 Hill. 104; May v. Babcock. 4 Hamm. Ohio E. 334; Wakefield v. Steelman, 12 Pick. 562; also 17 Mass. Rep. 571.)
    II. The testimony offered by defendant in support of his de-fence is inadmissible, and should be excluded; because, 1. No parol testimony can be received to vary or contradict a written contract free from ambiguity. (Clfftty on Contracts, 99 ; Erwin v. Sanders, 1 Coven 249.) 2. The facts proposed to be established as a defence to the action, are no defence. The defendants are bound at law by their agreement, the bill of lading in plaintiff’s hands. Ahnistake in that can only be rectified in a court of equity, upon.a bill filed to reform the contract. (CheriatY. Barker, 2 John. II. 340 ; Fitzhugli v. Runyon, 8 T. II. 375 ; Patchen v. Pierce, 12 Wend. 61; Cameron v. Irwin, 5 Hill 274; Webb v. Bice, 6 ITill 219. 3. The bill of lading, in tbe hands of a third party, is conclusive on the defendants. (Howard v. Tucker, 1 B.’& Ad. 712.)
    III. The plaintiff is entitled to judgment even if that testimony is admitted, upon the finding of the jury. 1. If verbal directions even were given, they are merged in and superseded by the written order given on the same day when the bill of lading was signed, with notice and knowledge of which defendants are chargeable ami by which they are bound. 2. If those directions were gi ven by Noye’s clerk, they were unauthorized and irregular and do not bind the plaintiff. 3. The plaintiff should not suffer by the carelessness of defendants’ clerk. 4. The finding that verbal directions were given is not sustained by the evidence.
    
      T II Raiman and A. Mann, Jun., for the defendants.
    1. On the finding of the jury that the verbal instructions were given to Tupping, to ship the wheat to Imlay & Smith, before the bill of lading in the plaintiff’s hands was signed, the testimony of Topping respecting that transaction must be taken as true, and it proves that the wheat was shipped under the verbal contract, which was simultaneously reduced to -writing by his entry in the shipping book of the defendants, and a transcript thereof entered on the bill of lading or shipping bill sent with the boat.
    2. This constituted the trae and only contract between the parties. This was the bill of lading by which the parties are bound, and this contract the defendants faithfully performed. The other bill of lading was signed by defendants’ agent by mistake.
    This is the legitimate conclusion to be drawn from the finding of the jury and the case. If the defendants had the right to prove these facts, and were not estopped to do so by the bill of lading in the plaintiff’s hands, they are entitled to judgment on the verdict.
    
      3. The erroneous directions to deliver the wheat to Imlay & Smith, was'the fault of the plaintiff’s agent. The origin pf his error is already proved.
    The question is, who shall suffer the consequences. His principal, or the innocent carriers, who are sought to be held liable upon a contract to which in contemplation of law' they have never assented.
    4. In legal effect, tire rights of the parties are the same as if the plaintiff in person had made the original contract with the defendants to carry the wheat and deliver it to Wright & Co., they had shipped it accordingly, and subsequently the plaintiff had presented the bill of lading which he holds, and they supposing it to be a transcript from their shipping book, without examination and inadvertently, had signed it. Wolfe is in contemplation of law, both shipper or consignor and consignee, bound by the acts of his agent and sub-agent, and affected by their knowledge of the facts. (Berkley v. Wating, 1 Adol. and Ell. 29.)
    5. As between shipowner and a stranger, or an assignee for value of the bill of lading, that instrument may be conclusive. Public policy would seem to require that it should be so. When its negotiable quality is acted upon, arid the rights of third persons intervene, the rigor of the rule is properly exercised. But as between the parties to the bill, it is not conclusive, in a case like the present. It is merely a receipt, liable to be opened by evidence of the real facts. If it were otherwise, the greatest injustice might be perpetrated by the form of law. {Bates v. Ford, 1 Moody and Bob. 106 ; 7 Adol. and Ell. 29 ; Portland Bank v. Stubbs, 6 Mass. R. 425 ; Abbott on Shipping, 324.)
    6. A court of equity would not hesitate to correct a mistake of this kind.
    But a party is not obliged to apply to a court of equity for relief. Parol evidence to show the mistake is admissible, by way of defence in a court of law. The rules of evidence in both courts are the same. (Starkie on Ev. 1017, note 1018.)
    The evidence in such case is not offered to contradict or explain a valid existing instrument, but to show that it was never such; that from accident or negligence it has never constituted the actual depository of the intention and meaning of the parties. (Ibid. 1018.) In this case the aid of a court of equity could not he had before the damage was sustained.
    7. If the court protect the defendants from liability on account of the damages occasioned by the negligence of the plaintiff’s agent, the plaintiff is not remediless. He has his action against his agent.
    But if the defendants are compelled to p)ay, they have no remedy.
    8. It is in point of conscience and equity, an actual fraud to claim an undue benefit and advantage from mere mistake, contrary to the real intention of the contracting parties. (Starkie’s Ev. 1018, 19.)
   By the Court.

Oakley, Cii. J.

'The question involved in this ease, which was much contested, and is not free from difficulty, is the admissibility of the evidence of verbal directions given relative to the shipment of the wheat, differing from the bill of lading, as it is called, winch was delivered to the plaintiff. The paper is not, however, technically speaking, a bill oflading, because that is signed by the master of the vessel on -which the goods are laden, while this is signed by the owners of the canal boat. It is, nevertheless, a plain stipulation by those owners that the wheat in question shall be delivered to the plaintiff in New- York. This has not been done.

But it is said in their defence, that on the same day this instrument was signed, and before it was signed, the plaintiff’s agent gave verbal directions to the defendants clerk to send the wdieat to Imlay and Smith. The jury have found these facts as claimed by the defendants, and although their finding on the evidence in that respect is not very satisfactory, we are n«>t disposed to interfere with the verdict on that ground. The question therefore is, whether those instructions were admissible to vary, explain, or affect this written instrument ? The general principle is, that a written contract cannot he varied, by parol evidence of instructions given before or at the time the contract is executed, because all the terms of the agreement are deemed to be expressed and fixed by the written instrument. It is contended on the part of the defendants, that this principle does not apply to a bill of lading, and they attempt to liken it to a receipt, which is open to explanation. Ordinarily, a bill of lading partakes of a twofold character. It is both a receipt and a contract. It is a receipt as to the number of bushels, or the quantity of the article put on hoard the vessel; and it is a contract to deliver the same at a certain place and to a certain party. As far as it is a receipt, it is no doubt open to explanation between the parties to it. The person giving it may prove that he was mistaken in the quantity of goods delivered to him, e. g. that only one thousand bushels of wheat were put on board, instead of two thousand expressed in the bill of lading.

But there is no case which goes the length of holding that the master shall be permitted to allege, not only that he did not receive the quantity of goods specified, but also that there was a mistake in the bill of lading, in stating the destination of the property intrusted to him. If the bill of lading state that the property was to go to Liverpool, the master cannot prove that by verbal agreement it was to be sent to London. That would be a distinct variation of the contract, of which parol evidence cannot be admitted. The true distinction is that which we have already stated; and there is no authority which goes beyond it — as a receipt, it may be varied and explained by parol; as a contract, it cannot.

This would be the rule in this case, if the instrument were a bill of lading. But, we repeat, it is not. It is a direct stipulation of the owners, to deliver the quantity of wheat specified to the plaintiff in New York. As such an agreement, it may be questionable whether the parties could prove that there was a mistake in the quantity of wheat. Clearly they cannot prove by parol, that there was a mistake as to the person to whom, or the place at which it was to be delivered. We, therefore, think the plaintiff must have judgment for the damages assessed by tbe jury.

Judgment for the plaintiff.  