
    Saltsman v. New York, L. E. & W. R. Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 5, 1892.)
    1. Parol Evidence—To Explain Bill of Lading.
    Though the body of a bill of lading stated that defendant railroad company agreed to forward its car of plaintiff’s property from Avoca, N. Y., to Buffalo, IT. Y., this is not conclusive as to the contract when the heading of the bill shows-that the car was to be taken from Avoca to Elkhart, Ind.; and plaintiff, in an action for loss of the property, may show, notwithstanding his acceptance of the biB of lading, what the real contract was under which defendant received his prop erty.
    2. Appeal—Objections not Raised Below.
    An objection to the measure of damages adopted by the trial court cannot be raised for the first time on appeal.
    Appeal from circuit court, Steubén county.'
    Action by Lawrence Saltsman against the New York, Lake Erie & Western Railroad Company to recover damages for the loss of a shipment of potatoes over defendant’s road. From a judgment entered on the verdict of a j«iry directed by the court, and from an order denying its motion for a new trial, defendant appeals. Affirmed.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      James H. Stevens, Jr., for appellant. Miller & Nichols, for respondent.
   Macomber, J.

This action was brought to recover damages for the loss ■of a certain shipment of potatoes, caused by the negligence of the defendant, which had undertaken, according to the plaintiff’s contention, to transport ¡the same from Avoca, N. Y., to Elkhart, Ind. At the close of all the testimony, the defendant’s counsel moved that" the court direct a verdict in behalf of the defendant, which was denied, and thereupon plaintiff’s counsel made a like motion for a direction of a verdict for the plaintiff, which was granted. The-sum recovered was the amount due and unpaid upon a draft annexed to a shipping bill. The controversy turns upon the question whether or not the contract entered into by the defendant was to carry the car load of potatoes from Avoca to Elkhart, Ind., or only to Buffalo, N. Y., the terminus of the defendant’s railway. As we view the case'presented by the motions made by the respective counsel, this question was substantially left to the determination of the court alone, as no request was made by the counsel for the defendant to submit any question of fact to the jury. It is true Chat the respective motions for a direction of a verdipt were not made concurrently; but no question Seems to have been raised at the trial which required the learned justice to submit any particular question of fact to the decision of the jury. The principal contention made against a recovery in this ease is placed by the learned counsel for the defendant upon the ground that fciie written contract between the parties showed that the defendant’s undertaking was simply to carry the plaintiff’s produce from Avoca to the city of Buffalo. The bill of lading was as follows:

“Avoca Station, Hov. 7, 1887.
“Received from L. Saitsman the following articles in apparent good order, viz.:
“ Car of potatoes in bulk. Car 37,319.
“Order of L. Saitsman. Released & gtd.
“ Yotify D. Carpenter, Elkhart, Indiana.
“L. S. & M. S. R’y. Claim Tracer. 45,649. Claim Department.
“Marked and numbered as per margin, which the N. Y., L. & W. R. R. Co. agrees to forward from Avoca, N. Y., to Buffalo, N. Y., upon the foliowing conditions, viz.: That the shipper or owner does hereby release said -company from liability for leakage of all kinds of liquids, breakage of ail kinds of marble, glass, carboys of acid, or articles packed in glass, stoves and stove furniture, castings, machinery, carriages, furniture, musical instruments of all kinds, packages of eggs; or for loss or damage on hay, hemp, cotton, or any article, the bulk of which renders it necessary to be shipped in open cars; or for damage to perishable property of ail kinds, occasioned by delays from any.cause, or change of weather; or for damage or loss by fire while in the company’s depots; and the acceptance of this receipt by the shipper constitutes the agreement for the transportation of the above-described goods •or property. [Signed] T. C. Chase, Agent.”

This bill of lading, were it the only evidence of a contract between the parties, would not, by any means, be conclusive upon the point made by the defendant’s counsel. The body of the instrument, it is true, says that the defendant agreed to forward the property from Avoca, N. Y., to Buffalo, N. Y., but the heading of the instrument shows clearly that this car of potatoes was to be taken from Avoca, N. Y., to Elkhart, Ind. The bill of lading does not contain any restrictions of liability against any contract which the defendant may have entered into in respect to transporting the property to its ultimate destination. We are of the opinion, therefore, that, notwithstanding the acceptance of this paper, it was competent for the plaintiff to show what the real contract was under which the defendant undertook the care of the plaintiff’s property. The testimony leaves but one solution of this question open to us. It is in its nature quite conclusively shown by the testimony of the plaintiff that the contract was with this defendant, by its proper agent, for the sum of 20 cents per hundred, to take the plaintiff’s potatoes, in a car which should be furnished by the defendant, and that the defendant should transport the same to Elkhart, Ind. Indeed, the evidence shows that the plaintiff, with the acquiescence of the defendant’s agent, fitted up the car specially for this purpose by placing a floor therein, and erecting suitable bins to separate the different kinds of potatoes one from the other. That it was competent for the parties to make this contract, and that the same, if made under the circumstances stated, was binding upon the defendant, admits of no intelligent doubt under the well-adjudged cases. Riley v. Railroad Co., 34 Hun, 97; Jennings v. Railroad Co., 127 N. Y. 449, 28 N. E. Rep. 394.

Some other questions are raised by the counsel for appellant, but, inasmuch as they do not appear to have been presented to the trial court, they can hardly be regarded as properly before the court on appeal. These mainly relate to the measure of damages. If it was intended by the defendant’s counsel to contend that the liability was less than the amount of the draft accompanying the way bill, the point, we think, should have been presented at the circuit, and not raised here for the first time. Judgment and order appealed from should be affirmed. All concur.  