
    Thompson Dean et al. v. King, Pennock & King.
    Although, as a general rule, the judgment of a court of error reversing the judgment of an inferior tribunal for refusing to grant a new trial,, where it is claimed that the findings of fact are not sustained by sufficient evidence, will not be disturbed, yet, if upon review of all the testimony, it clearly appears that such findings were sustained by the weight of testimony, this court, upon error, will reverse the judgment of reversal.
    In an action by the shipper against the owners of a steamboat engaged in the business of common carriers, to recover for the non-delivery of goods as per bill of lading, the defendants are liable only for so much of the goods as was actually received on the boat or delivered to somo one authorized to receive freight on her account.
    
      In such action, parol evidence is admissible for the purpose of explaining or contradicting the terms of the hill of lading, in so far as it purports to he a receipt for freight delivered to the boat.
    The mere employment of an officer or agent for such boat does not clothe him with apparent authority to issue hills of lading for goods not on board, or not delivered to one authorized to receive freight on account of the boat.
    "Where the agent of such boat carelessly issues a bill of lading acknowledging the receipt of freight not on hoard or not delivered to a person authorized to receive it, the owners of the boat are not estopped, by reason of such-carelessness, from denying the receipt thereof, although the shipper may have been misled thereby.
    Error, to the Superior Court of Cincinnati.
    Tire original action was brought by the defendants in error, King, Pennock & King, to recover of the plaintiffs in error, wlio were owners of the steamboat Lady Franklin,, tbe value of twenty bales of cotton. The snit was brought on an ordinary bill or lading, which purported that tbe Lady Franklin had received seveuty-three bales of cotton from the agents of the plaintiff, at Memphis, Tennessee, and was to carry the same for four dollars per bale to Cincinnati, Ohio, and there deliver them to B. M. Forbes, an agent of the plaintiffs. Fifty-three bales were duly delivered to the consignee, and the action was brought for the number of bales mentioned in the bill of lading less the number of bales delivered.
    Tbe answer sets up that tbe twenty bales of cotton were never delivered to tbe boat, or to any one authorized by the boat to receive the cotton, or to any one who assumed to be so authorized; and that the bill of lading was drawn up by the plaintiff’s agent, and signed, for seventy-three bales by mistake and inadvertence, when but fifty-three-bales were in fact ever received by the boat, or any one authorized or who assumed to receive it for tbe boat. The answer specifically denies tbe material allegations of tbe petition.
    Upon tbe issue thus joined, the cause was submitted to the Superior Court, at special term, upon testimony, and judgment was rendered against the plaintiffs in the action.
    Thereupon, the plaintiffs moved the court for a new trial upon the ground that the judgment was against the evidence and the law of the case. This motion was overruled by the court. To which judgment and the overruling of the motion the plaintiffs excepted, and filed their bill of exceptions embracing all the testimony.
    The cause was then removed to the said Superior Court, sitting in general term, by proceedings in error.
    Afterward, the cause coming on to be heard upon the petition in error, at general term, the judgment rendered at special term was reversed upon the ground set forth in the motion for a new trial, and was remanded to special term for further proceedings, etc..
    This petition in error is now prosecuted in this court to reverse the judgment of reversal rendered at the general •term of said Superior Court, and to affirm the judgment rendered at special term.
    
      Lincoln, Smith, Warnóck &; Stephens, for plaintiffs in error:
    I. It is claimed that the plaintiffs in error are not entitled ■to review the judgment of the Superior Court, reversing •the judgmént entered at special term, for the reason that the judgment of reversal ordered that the case be remanded for further hearing, and that the plaintiffs below might have then dismissed the case.
    This question is fully settled by this court in several cases. I shall therefore simply refer the court to-the cases upon the point, and proceed to the other questions which are pressed more upon the court. Schaeffer et al. v. Marienthal, 17 Ohio St. 188; Huntington et al. v. Finch et al., 3 Ohio St. 447-452; Lewis v. Eutsler et al., 4 Ohio St. 355; Chapman v. Weimer, 4 Ohio St. 483, 487; Follett’s Adm’r v. Buyer, 4 Ohio St. 592, 593.
    II. The cotton in question was never delivered to the defendants or to any one authorized to receive it for them. The evidence of its delivery to the Lady Franklin is of little value. Under this head, counsel commented at length upon the evidence.
    III. There is no ground for an estoppel in this case. It is claimed that the clerk of the boat was authorized to give bills of lading whenever he was satisfied that the property was on board. And.it was argued that it was his duty to examine the dray-tickets and pass upon their genuineness, and if satisfied of their genuineness to issue a bill of lading; ■and that when he has issued such bill of lading, the .owner is estopped to deny that the property is on board. This is the real point intended to be made by the petition, and upon which the plaintiffs must rest their case.
    This claim has been suggested by, and is based upon the law relating to the duty of cashiers and tellers of banks, to know whether their bills are genuine or cou'nterfeit, and to know the signatures of their customers to checks and drafts ■upon them; and it is upon authorities relating to that matter that the plaintiffs really rely. Now, there is no analogy between the cases.
    Eor the security of the public, and because bankers have peculiar means of knowing these facts, and because of the privileges granted to them, and of the vital importance of certainty upon these matters, the law has imposed these duties upon banks and bankers as to their bills and the signatures of their customers. It relates to money and checks .and bills, which circulate as money, and not to a temporary receipt like a dray-ticket. This is a peculiar duty imposed ■upon them, and found established in this country for more ■than fifty years. But where is any such duty imposed or fixed upon captains and clerks of steamboats? One would expect to find some evidence or trace of it, or some claim of it, if any such existed ? But none such is referred to. After more than two hundred years of the commercial history of this country and England, during which captains and clerks have performed their duties, and bills of lading have been known, no case can be found recognizing any such rule. This would seem to be conclusive against any such claim. It has frequently been held that the absence of authority in favor of a claim of frequent occurrence is strong evidence' that it does not exist. Worley v. C. H. and D. R. R. Co., 1 Handy, 484 Duke of Newcastle v. Clark, 8 Taunt. 621; Le Caux v. Eden, 2 Doug. 602; Russell v. Men of Devon, 2 Term, 673; Pasely v. Freeman, 3 Term, 53; Costigan v. M. and H. R. R. Co., 2 Denio, 613.
    But we find it repeatedly held that the bill of lading is-not conclusive, and that neither master nor clerk has any authority to bind the owner by a bill of lading when the goods are not, in fact, on board.
    And it is directly decided to be dangerous to commerce to permit them to give any binding bill of lading, unless the goods are, in fact, on board. The captains and clerks-are called upon to act when far away from their principals, and when the latter can only be protected by requiring of those with whom they deal to go no further with them than the plain and established usage of their business has sanctioned. They are not situated like banking companies and tellers, and the law deems it unsafe and unwise to place= any other power in their hands than such as grows directly out of their actual shipments. Neither by their purposed fraud in obtaining money upon such bills of lading prepai’ed for that purpose, nor when such bills of lading are by accident and inadvertence erroneously prepared, can the owners be held, even to innocent parties who have advanced money on the same, unless the goods are in fact on board, and then only to the extent that they are actually on board. This is now the settled law of England and this country— settled beyond dispute or further question. The Leon, 7 Blatchf. C. C. 246; Schooner Freeman v. Buckingham, 18 How 191; The Lady Franklin, 8 Wal. 329; Jessel v. Bath, Brit. Law Rep. (C. L.), 2 Exch. 272-274; Sears and others v. Wingate, 3 Allen, 107; Grant v. Norway, (1 J. Scott) 20 Com. B. 689; Gurney v. Behrend, (3 El. & Bl.) 77 E. C. L. 634, 635; Second National Bank v. Walbridge et al., 19 Ohio St. 425; Thompson v. Dominy, 14 M. & W. 407; Hubbersty v. Ward, 8 Exch. 834; Coleman v. Riches, (7 J. Scott) 16 Com. B. 119; Bates et al. v. Todd, 1 M. & R. 107; Walter v. Brewer, 11 Mass. 102; Berkely v. Watling, 7 Adol. & El. 38; Meyer v. Peck, 28 N. Y. 596; Ellis v. Willard, 5 Seld. 530; Blanchard, et al. v. Page et al., 8 Gray, 287; Fallons et al. v. The Steamer R. N. Powell and owners, 16 La. Ann. 316; Fearn et al. v. Richardson, 12 La. Ann. 753.
    Counsel then quoted largely from the opinions of Curtis,, J., in 18 How. 191; Woodruff, J., in the case of The Leon, 7 Blatch. C. C. 246; Bramwell, B., in 2 Exch. (B & R.) 374; and Pollock, C. B., in 8 Exeh. 333, 334, and cited the rules-laid down by the court in the case of Sears and others v. Wingate, 3 Allen, 107, viz :
    “1. The receipt in the bill of lading is open to explanation between the master and the shipper of the goods.
    “ 2. The master is estopped as against a consignee who is-not a party to the contract, and as against an assignee of the bill of lading, when either has taken it for a valuable-consideration upon the faith of the acknowledgments which it contains, to deny the truth of the statements-to which he has given credit b.y his signature so far as those statements relate to matters which are, or ought to be,, within his knowledge.
    “ 3. When the master is acting within the limits of his authority, the owners are estopped in like manner with him ; but it is not within the general scope of the master’s authority to sign bills of lading for any goods not actually received on board.”
    
    A bill of lading is not negotiable. It represents the property on board, and an assignment of it for value carries the title. In this respect it is like a warehouse receipt. An assignment of it does not carry the contract. Second National Bank v. Walbridge, 19 Ohio St. 425; Blanchard v. Page, 8 Gray, 298; Howard v. Sheppard, 9 M., G. & S. (67 C. L.) 321; Gurney v. Behrend, 3 El. & Bl. 623; Thompson v. Dominy, 14 Mees. & W. 407; Grant v. Norway, 323 Com. B. (70 E. C. L.) 688.
    The rule is well stated by Lord Campbell, in Gurney v. Behrend. He says: “A bill of lading is not like a bill of exchange or promissory note, a negotiable instrument, which passes by a mere delivery to a bona fide transferee for valuable consideration, without regard to the title of the parties who make the transfer. Although the shipper may have indorsed in blank a bill of lading deliverable to his assigns, his right is not affected by an appropriation of it without his authority. If it be stolen from him, or transferred without his authority, a subsequent bona fide transferee for value can not make title under it, as against 'the shipper of the goods. The bill of lading only represents the goods, and in this instance, the transfer of the symbol does not operate more than a transfer.of what is represented.” 3 El. & Bl. 633, 634.
    
      Grant v. Norway, 10 Com. B. (70 E. C. L.) 688, was a suit by a bona fide indorsee of a bill of lading, signed by the master, for twelve bales of silk. The silks were never in fact shipped.
    Jervis, C. J., in giving the opinion of the court, after stating that the master was the agent of the ship tó do what is usual, says:
    “He may make contracts to carry goods or freight, but can not bind his owners by a contract to carry goods free. So, with regal'd to goods put on board, he may sign a bill of lading, and acknowledge the nature and quality and condition of the goods. Constant usage shows that masters have that general authority; and, if a more limited one is given, a party not informed of it is not affected by such limitation. The master is a general agent to perform all things relating to the usual employment of his ship; and the authority of such an agent to perform all things usual in the line of business in which he is employed, can not be limited by any private order or direction not known to the party dealing with him.
    “ Is it, then, usual in the management of a ship carrying goods on freight, for the master to give a bill of lading for goods not put on board? for all parties concerned have a right to assume that an agent has authority to do all which is usual. The very nature of a bill of lading shows that it ought not to be signed until goods are on board; for, it begins by describing them as shipped.
    
    “If, then, from the usage of trade, and the general practice of ship masters, it is generally known that the master derives no such authority from his position as master, the ease may be considered as if the party taking the bill of lading had notice of an express limitation of the authority; and in that case, undoubtedly, he could not claim to bind the-owner by a bill of lading signed, when the goods therein, mentioned were never shipped.” 10 Com. B. 687.
    
      But our case stands between the original parties, and nothing-was ever advanced upon the faith of this bill of lading.
    
    An effort is made to place the case of the defendants-upon the ordinary doctrines of estoppel in pais against the plaintiffs, and certain cases are cited and quoted from;, among them the following, to wit: Johnson v. Jones, 4. Barb. 372; Exchange Bank v. Monteith, 17 Barb. 177; Hunter v. Hudson R. I. and M. Co., 20 Barb. 493; Smith v. Empire Ins. Co., 25 Barb. 497; Medbury v. N. W. and E. R. R. Co., 26 Barb. 564; Strong v. Ellsworth, 26 Vt. 373.
    But none of these eases have any bearing upon the case before the court. They go to the point that he who has-endowed a party with an apparent authority, shall be responsible for his act when without such apparent authority.. These cases have no force in this discussion, for the reason, that it is clearly established that neither captain nor clerk, of a boat has any apparent authority to sign a bill of lading for cargo not on board, or for more than is on board.
    It is also said that where two innocent parties must suffer-by the fraud of another, the loss should fall upon him who. enabled such third person to commit the fraud; and the ease of Root v. French, 13 Wend. 572, is cited.
    This is a very familiar principle of law, but there are two reasons why it‘can not be used against the plaintiffs in this case: 1. There was no fraud committed by any one. 2. If there was, it was the agent of the defendants who enabled, the clerk to commit it, and the rule holds against these de- • fendants, not for them.
    
      It is next claimed that the ordinary doctrine of estoppel in pais applies. Now, this doctrine is founded in fraud, or its equivalent, gross negligence, by which is meant a recklessness which involves moral turpitude; and it is only applied where it is necessary to prevent such fraud, and there is not the slightest ground to claim anything of the kind in this case. Hill v. Epply, 31 Penn. St. 334; Commonwealth v. Moltz, 10 Barr, 531; Martin v. Angel, 7 Barb. 409 ; Biddle Boggs v. Merced Mining Co., 14 Cal. 368; McKinzie v. Steele et al., 18 Ohio St. 42; Copeland v. Copeland, 28 Maine, 540; Taylor v. Ely, 25 Conn. 258; Pickard v. Sears, 6 Ad. & El. 474; Freeman v. Cock, 2 Exch. 662. The cases are numerous to that effect.
    Neither silence, carelessness, nor negligence can amount to an estoppel unless it is of a character that shows a disregard of moral right; in other words, unless it amounts to a fraud
    Another element in the doctrine of estoppel in such a ■case as this is, that the party setting it up has no other means of ascertaining the true condition of the thing.
    Thus, in Commonwealth v. Moltz, immediately following the above citation, the court proceed: “But it is obvious that there can be no such fraud where the purchaser, or other actor, was or ought to have been acquainted with the .subject of his action, or even had the means of knowledge and neglected to avail himself of them.” 19 Penn. St. 531.
    To the same effect see Biddle Boggs v. Merced Mining Co., 14 Cal. 368. The plaintiff’s agent could have ascertained the facts by examining the dray-tickets, and this it vras his duty to do. See the case of Fearn, Putnam & Co. v. Richardson, 12 Louisiana Annual, 752, where the court say: “ The defendant has not, therefore, shown that ordinary care and diligence which was required of him, whether he be considered a vendor of the goods or a mere agent. He .should have shown that the dray-reeeipts were signed by the clerk or other officers of the Republic, and he did not exercise proper •care, inasmuch as he does not appear to have examined the drayireceipt, on the return of .the drays from Portland, in order to 
      
      ■ascertain whether the goods had been delivered, and if so, whether they had been delivered to the right boat.”
    
    With a few words in relation to the character of the judgment which the court should render, I shall close this brief.
    The case was submitted to Judge Taft, and his findings upon the facts were equivalent to a verdict of the jury, and must be so treated by any court reviewing his judgment on ■error; and upon the questions of fact involved in the ease at the trial, the question in the reviewing court is not as it is before the court trying the case, to wit: With which party does the evidence fairly preponderate? But it is this : Was the finding of the trying court so far without evidence to sustain it, or so contrary to the weight of the evidence, that the reviewing court may well find that the finding of the facts by the trying court was based upon some error in law, or influenced by prejudice in favor of •one party or the other. Now, the main fact in dispute between the parties at the trial was whether these twenty bales of cotton were ever received on board the “Lady Franklin,” and Judge Taft must have found, and did find, that they were not.
    Unless this finding is clearly against the evidence, the Superior Court, sitting in general term, could not reverse the judgment of Judge Taft upon any question of fact. If they did so, it was error in law, and this court should reverse the decision of the Superior Court at general term, and proceeding to render the judgment which that court ■should have rendered, affirm that of Judge Taft at special term.
    
      M. H. Tilden and Collier § Heath, for King, Pennock & King:
    1. The question arises in the outset, whether the record! presents such a case to which a petition in error will lie. The case of Schaeffer et al. v. Wickersham et al., 17 Ohio St. 188, does not sustain the remedy in such a case, nor do the ■cases there cited sustain it. In each of those eases there was a final order or judgment determining the substantial rights of the parties, and nothing remained open for adjudication, except the single question presented by the proceedings in error, of whether there was error in the judgment or order, and the proceedings were strictly warranted by the provisions of the code. Secs. 511-514. .
    But, in the present instance, there is no final order or judgment within the meaning of the code. King and others sued Bean and others, and, at the special term, failing in their action on the facts and the law, there was a. final judgment against them. On the reversal of this judgment at the general term, it would have been legally competent for the court to have proceeded to render such a judgment as the court ought to have rendered at special* term. But this was not done. The judgment at special term was simply reversed, and the case was remanded for further proceedings. There is, therefore, no final judgment of record in either court; there is no case in the general term, and there is no record there. The case, standing on' the issues presented by the pleadings, is pending before the’ special term. Suppose it should be there dismissed on the motion of the plaintiffs, before trial, what would be the’ effect of a judgment in this court, reversing the judgment of the general term? And suppose the case coming on fortrial at special term, after such reversal, how would the-judgment of this court operate, except as indicating a raleof law governing a question of law. Clearly not at all;; because the record brings before the court no final judgment or order. Holland v. Hatch, 15 Ohio St. 464.
    But it appears to us that the question here presented v in effect settled according to our view by other cases in our reports. See Mer. and Manufac. Ins. Co. v. Shillito, 15 Ohio, 559; Kelley v. Hunter, 12 Ohio, 219; Spafford v. Bradley, 20 Ohio, 74.
    II. There are many adjudications to the effect that a receipt is not conclusive as to the facts stated in it, but may be controverted by testimony.
    
      Nor is a bill of lading excepted from this rule. Thus it has been held (Goodrich v. Norris, Abb. Adm. 196):
    “ In so far as a bill of lading operates as a contract, it is conclusive as to the intention of the parties, and may not be varied by parol.evidence. In so far as it operates as a receipt, merely, it is open to explanation or rectification by parol evidence, as in any other receipt.”
    "While this doctrine, as to the effect of a receipt as evidence, is ordinarily correct, it is not so under all circumstances.
    If A. owes B. one hundred dollars, and, without parting with the one hundred dollars, or its equivalent, and without the receipt of the same by B., procures B.’s receipt therefor, B. may surely rectify this by parol evidence.
    But if B. tells A. that C. is his (B.’s) agent to receive and receipt for the money, then payment by A. to C. is conclusive upon B., although, in fact, B. was mistaken as to such agency. And such payment to C. is none the less conclusive as against B., whether his declaration (mistaken) of C.’s agency be by express language, or by implication arising from his acts, or his silence.
    
    The chief clerk of a steamboat — in this instance Stein— is an agent of the owners to sign bills of lading on behalf of the boat, upon evidence being furnished to him of the shipment by the party asking for the bill of lading, and of the receipt by the boat of such shipment. It is not the province of such chief clerk to receive, personally, the articles shipped; on the contrary, on most boats, as on the Lady Eranklin, there is one or more receiving clerks, whose business is to stand on the wharf and there receive freight from shippers, giving to them receipts (“ dray-tickets ”) on behalf of the boat, as was also done in this instance. Those receipts it is the established custom for the shipper to present to the chief clerk as evidence of the delivery to, and receipt by the boat, and as the foundation of the shipper’s right to a bill of ladiug; all of which was done in this case.
    It is the province — the duty — of the chief clerk to examine these receipts at the time of their presentation; to say whether or not they are correct in form, and whether they are given by any person authorized to act on behalf of the boat. If he finds that they are correct in these respects, his duty is to give to the shipper a bill of lading ; otherwise not. In other words, he is agent of the owners of the boat — clothed with full authority to audit the receipts given on the wharf to the shipper ; and this duty comprehends, of course, that he shall decide as well upon the authority of the signer as the genuineness of the signature.
    
    And when Mr. Stein received these “ dray-tickets ” or receipts from Mr. Babb, and, placing them on his files, delivered to the latter the bills of lading, he said, interpreting into words his act:
    “ These receipts which you present for fifty-three and twenty bales of cotton, signed by‘Holmes’ and ‘Irwin,’ respectively, are correct in form; the signatures thereto are genuine, and the signers are the duly authorized receiving clerks of the Lady Eranklin, and the receipts evidence the receipt by the boat of the seventy-three bales of cotton, and establish your right to a bill of lading, which I now give you in lieu of the ‘ dray-tickets,’ which I retain.”
    And now, after the proper agent of the boat has audited these receipts; after he has taken them into his own possession ; after the cotton, if it went into the possession of “ Irwin,” or on board the Sunny Side, is wholly lost to, and beyond possible recovery by the owuers, shall the owners of the boat.be allowed to interpose, as a shield for their protection, either the mistake or the negligence of their agent?
    Many cases were cited in the court below, and will probably be referred to in this court, in which common carriers, being sued on bills of lading, were held liable only ■for goods actually received, and released from claims made upon them for goods receipted for by, but not delivered to them.
    But in each instance, the claimants had not parted to any one with all the property for which they had obtained receipts; and the industry of the learned counsel will, we think, be taxed in vain in the endeavor to find a case where a shipper has parted with all the property specified in the bill of lading on the acknowledgment of its receipt by the carrier, and the carrier allowed afterward, when the property has been lost, to assert his owTn mistake or negligence for his own protection.
    If King, Pennock & Co., having obtained a bill of lading for seventy-three bales, bad in fact parted with but fifty-three, we concede they would not be entitled to a recovery : it would be, in such case, equivalent to a fraud to assert a claim for the value of that which they had not lost; but such is not the case. They parted with the entire seventy-three bales on the faith of the acknowledgment of its receipt by the Lady Franklin.
    It is now too late for the owners of the boat to assert that “Irwin” was not their agent, and that they did not receive the cotton: they are estopped.
    
    We ask the court to apply to the case under consideration the rule as established by the Supreme Court of the United States, in the case of The United States Bank v. The Bank of Georgia, 10 Wheaton, 333.
    While the mercantile community are not presumed to know who the sub-clerks and agents of railroads and steamboats, with whom they do business, are, the superior officers of these common carriers are bound to know their subordinates; and having at one time, while acting within the sphere of their duties, asserted, by word or by act, that A. or B. was a subordinate officer or agent, they will not be permitted to gainsay this to the injury of a party who has been influenced by the first statement.
    If “ Irwin,” whose name was given to Harris, Hunt & Co. for twenty bales of cotton on behalf of the Lady Franklin, was not connected with that boat, the chief clerk was guilty of the grossest carelessness not to have discovered it; or’, if he did discover it — which is not at all improbable — he must have thought that Irwin was acting on behalf of the Lady Franklio, in the temporary absence of the receiving clerk of that boat; and, as it is not at all unusual for clerks of boats lying adjacent to each other to interchange such accommodations, the theory last stated maybe the correct solution of this matter.
    It is a general rule, that where one of two innocent persons must suffer by the misconduct of a third person, that party shall suffer who, by his own acts and conduct, has enabled such third person, by giving him credit, to practice a fraud or imposition upon the other party. Story on Agency, secs. 56, 264; Baring v. Corrie, 2 B. & Ald. 143; Root v French, 13 Wend. 572.
    In general, where the agent has acted within the scope of his employment, the principal must suffer the loss, rather than a third party who has dealt with the agent in good faith. New York Supreme Court, 4 Barb. 369; 17 Ib. 171; 20 Ib. 493; 3 Ohio St. 308; 25 Barb. 497; 26 Ib. 564.
    One shall be bound by the state of facts, which, by his words, his actions, or by his silence even — whether intentionally or carelessly — he has induced another to act upon. Strong v. Ellsworth, 26 Vermont, 373, per Redfield, C. J.; F. & M. Bank of Kent Co. v. B. & D. Bank, 16 N. Y. 125; The Bank of Commerce v. The Union Bank, 3 Comst. 230; 9 Barn. & Cress. 902; Ellis and Morton v. The Ohio L. Ins. and T. Co., 1 Handy, 97.
    “ A. giving B. a bill of parcels of goods, and a certificate that he held them on storage for B., is estopped to say he never had the goods.” Chapman v. Searle, 3 Pick. 38.
    The case of Harding v. Carter, at the sittings in Guildhall, Easter T., cited by Park on Ins., 7 ed. 4, has a strong bearing upon the question of estoppel. It was trover for two policies of insurance. The defendants were brokers, and had written to the plaintiff that they had got two policies effected, one on account of the plaintiff’s clothes and wages, and the other on account of the owner’s, and that Mr. N. was the underwriter. A loss happened, and the defendant produced a policy, underwritten by one J. S. upon the ship only, in which the plaintiff had no interest. Lord Mansfield held the defendants as the actual insurers. The defense set up was, that the letter was written by the defendant’s clerk through mistake; and it was said that trover would not lie for that which never vested; but his lordship would not suffer the defendants to contradict their own representations.
   McIlvaine, J.

The first question to be determined in this case is one of practice.

Will this court, upon petition in error, review the testimony and reverse the judgment of an inferior court, which judgment itself is a judgment of reversal rendered upon proceedings in error to an inferior tribunal, the ground of reversal being that the court rendering the original judgment erred in refusing to set aside its judgment, on a claim that it was not sustained by sufficient evidence; the cause after reversal having been remanded to the court of original jurisdiction for further trial and proceedings, where it is still pending ?

This question has not heretofore been finally passed upon in any case wherein the court found the weight of testimony in favor of the verdict or finding of fact, under either the statute of 1845 or 1858, making the insufficiency of evidence a ground for reversal on error. And it has been suggested that in this case the determination of it is somewhat embarrassed on account of the peculiar organization of the Superior Court of Cincinnati — both the original judgment and the judgment of reversal having been rendered in that court — and the cause is still pending therein for further trial on the merits. But on examination of the statute (and amendments thereto), establishing the Superior Court of Cincinnati, we are satisfied that, for the purposes of the present question, the special term of that court must be regarded as a court of original jurisdiction, and the general term as a court of error, so that this case stands as though an inferior court of original jurisdiction had refused to set aside its findings and judgment, and grant a new trial, upon the grounds named, and afterward a court superior to it had, upon proceedings in error, reversed the judgment of the inferior tribunal for error in not granting a new trial, upon the ground that its judgment was not sustained by sufficient evidence, and had remanded the cause for further proceedings. See Swan & Critchfield, 388, et seq.

We must, therefore, regard the case in the general term as finally disposed of, and its judgment of reversal as a final judgment within the meaning of title 16 of the code of civil procedure.

Germane to the question then before us, are two or three rules of practice which have been fully settled:

1. The verdict of a jury should not be set aside by the court to which it is returned on account of any mere difference of opinion between the judge and the jury as to the weight of the testimony, but only when the verdict is unsupported by or is against the decided weight of the evidence. 5 Ohio, 245; 12 Ohio, 151; 2 Ohio St. 44; 4 Ohio St. 566.

2. Motions for new trials, upon the ground that the verdiet is against the weight of evidence, are addressed to the discretion of the court, and if granted, the judgment will not be disturbed on error unless the case is so strong as to show an abuse of the discretion. 5 Ohio, 245; 13 Ohio St. 115. And if the motion be overruled, a reviewing court should not reverse, unless the verdict (or finding of fact, if the jury be waived) is so clearly unsupported by the weight of evidence as to indicate some misapprehension, or mistake, or bias on the part of the jury, or a willful disregard of duty. McGatrick v. Wason, 4 Ohio St. 566; French v. Millard, 2 Ohio St. 53; 4 Ohio St. 60.

3. In cases wherein the motion for a new trial was overruled by the court of original jurisdiction, and judgment on the merits was rendered, and such judgment was afterward reversed upon proceedings in error in a higher court, for the reason that it was not sustained by sufficient evidence, it has been held by this court, on petition iu error to reverse that judgment of reversal, that, as a general rule, it will not be considered a case subject to reversal, unless clear and palpable error is manifest. See Spafford v. Bradley, 20 Ohio, 74, and John Hammond v. Mary Hammond, decided at this term, but not yet reported.

The theory upon which these cases appear to have been decided, is, that inasmuch as the case is pending, in the court of original jurisdiction, for trial, before a jury whose peculiar province is to determine issues of fact, it should not be withdrawn unless error has clearly intervened. The authority of the court, however, to proceed to judgment of reversal in a proper case is not denied. We have no fault to find with those cases, but believe that there is and should be a just and proper hesitancy in declaring the judgment below to be erroneous, and that the reversal was imprudently and illegally entered under such circumstances.

And it must be observed that in both the cases referred to, the membei’s of the court concurring in the opinions delivered were divided upon the question, as to whether the original judgment was or was not sustained by the weight of the testimony; and, therefore, the judgments of reversal were not disturbed.

But we are unanimously of the opinion, that in a case wherein the weight of testimony is clearly in favor of the original judgment, it is error to reverse it, and in such ease the judgment of reversal should be reversed. 4 Ohio St. 481; 17 Ohio St. 188.

2. Without quoting from the testimony in the record, suffice it to say, that on examination of all the evidence in the case, we are clearly of the opinion that the twenty bales of cotton, for which the original action wa3 brought against the defendants, as owners of the steamboat Lady Franklin, were not delivered on board the boat, nor to any person authorized to receive freight for said boat, nor on the wharf where she was receiving freight at the time. Hence, the only matters remaining to be considered are questions of law arising upon a state of facts clearly disclosed upon the record.

The execution of the bill of lading by the chief clerk of the boat, which purported to cover the twenty bales in dispute being admitted, and it being conceded that they were not delivered to the consignee as per bill of lading, a prima facie case was made for the plaintiffs below. Then as to the matters of defense: 1. Was it competent for the defendants’ to show, by parol testimony, that the cotton in controversy had not been received by the boat, and thus contradict the terms of the bill of lading? Certainly it was, and for two reasons: 1. In so far as the bill of lading was a mere receipt for freight, it was clearly subject to explanation by parol testimony. 4 Ohio, 334; 28 N.Y. 598; 5 Selden, 531; Abb. Abm. 196. And, 2. Officers of a vessel engaged in the business of a common carrier have no presumed authority to issue bills of lading for freight not on board the vessel, or not delivered to some one authorized to receive freight. And if the bill of lading be issued without authority, the owners are not bouud thereby. 18 Howard, S. C. 191; 7 Blatch. C. C. 246; 18-Eng.L. & E. 551; 3 Allen, 107; 2 Exch. 274; 8 Exch. 333; 11 Mass. 99; 10 Com. B. 687.

Nor is there anything in the facts of this case, which, under the doctrine of estoppel in pais, precluded the defendants below from showing that the goods in. question had not been shipped on their boat, as stated in the bill of lading, or from denying their liability for not delivering them to the consignee.

The facts were as follows:

Harris, Hunt & Co., agents of the plaintiff's at Memphis, had in store seventy-three bales of cotton of the plaintiffs. Harris, Hunt & Co., intending to ship the cotton for the plaintiff's to Cincinnati by the steamer Lady Franklin, which is owned by the defendants, filled dray-tickets with the printed headings Lady Franklin, to be signed by the receiving'clerk of the Lady Franklin on receiving the cotton. The drayman of Harris, Hunt & Co. took fifty-three bales of the cotton to the Lady Franklin, and got the receiving clerk’s name to a dray-ticket for so many bales of cotton. But tlie drayman intrusted with the twenty bales, by mistake, took them to the steamer Sunny Side, and delivered them to Irwin, the receiving clerk of the Sunny Side, on his signing the dray-ticket for twenty bales of cotton. These dray-tickets were returned to Harris, Hunt & Co., by their drayman, and taken down by Mr. Babb, a member of the firm of Harris, Hunt & Co., to the steamboat Lady Franklin and presented to Frank Stein, the first clerk of the steamer, for a bill of lading, and without observing that one of them was signed by Irwin, the receiving clerk of the Sunny Side, instead of Frank Holmes, the receiving clerk of the Lady Franklin, Stein issued the bill of lading for seventy-three bales of cotton, the boat having actually received but fifty-three. The fifty-three bales were brought to Cincinnati and delivered according to the requisition of the bill of lading. The twenty bales have not been delivered nor heard of since. But as the steamboat Sunny Side, starting from Memphis about the same time with the Lady Franklin, was burnt on the Mississippi, with all the property on board, the presumption is that the cotton was destroyed with the Sunny Side. The twenty bales of cotton, then, were not delivered, nor received on board the Lady Franklin. The bill of lading was, in fact, prepared by Mr. Babb, as was his duty under the custom at that port, and was presented, ready for signature, to Stein, chief clerk, for signing merely, and was signed by him without examination or discovery of the mistake.

The acknowledgment of the seventy-three bales in the bill of lading was by mistake, and the mistake was mutual. Under mistake, Babb represented to the first clerk, by presenting to him the dray-tickets and calling for a'bill of lading for the seventy-three bales, that so many bales had been delivered. The first clerk, under a like mistake, issued the bill of lading for the whole number. There was no fraud on the part of either, though there may have been some neglect on both sides.

It is clear, for several reasons, that the conduct of Stein? in omitting to examine the dray-tickets, whereby he might have discovered that the twenty bales had been delivered to the Sunny Side and not to the Lady Eranklin, and his carelessness in signing a bill of lading for more freight than his boat had in fact received, can not work an estoppel in pais as against the owners of the boat: 1. It can not be affirmed that the plaintiffs below were injured thereby. 2. The loss of the cotton on board the Sunny Side was the result of the fault of the drayman, the plaintiff's’ agent.. 3. It was the duty of Mr. Babb to prepare and present a correct bill of lading, and it was his wrong to present a bill for more freight than he had delivered to the Lady Eranklin. 4. The conduct of Stein did not amount to a representation that Irwin was a receiving clerk for the Lady Eranklin. 5. This whole controversy has grown out of mutual, but innocent mistakes on both sides.

The original judgment, therefore, was not contrary to the law or the testimony, and should not have been reversed.

Judgment at general term reversed, and judgment at special term affirmed, and cause remanded for execution, etc.  