case.

Witzler v. Collins.

The defendants were common carriers by water.

Their duties as such began and ended upon the water or upon the wharf at each end of their route. A portion of these goods, as the case shows, at the time the contract was made, were in the railroad depot, or had not arrived there in their transit from New York. If therefore they had "assumed the charge" of them it would not have been as carriers, nor would their liabilities as such have attached until their arrival at their wharf.

But there is no proof of any such assumption. The only evidence of the contract set out in the writ is not contained in the bill of lading of September 9. The duties and liabilities of the defendants must rest upon that and the law applicable to it. So far as it is a contract it is not to be extended by parol testimony, and if there were any such in the case it would not be competent for the jury to infer" by any thing the parties said or did or described in the receipt" that it covered or included any goods not specified by its terms. As a written instrument its construction is a question of law and not of fact. Parol testimony, if offered, would have been competent to show what specific articles were contained in the packages mentioned in the bill of lading, but not that it embraced other packages or goods elsewhere.

By its terms it clearly included only such as at the time were actually delivered upon the wharf. In it these goods are described as "shipped," and under that description it covers and binds the defendants for no goods except such as are on the vessel or wharf, or such as shall be so delivered as and for the goods embraced in the bill of lading and before the vessel sails. Rowley v. Bigelow, 12 Pick. 314, 315; The Delaware, 14 Wall. 600, 601.

The liabilities of these defendants, if any, are as owners of the steamer and in no other way. The same contract that would bind them for the safe carriage of the goods would also bind the vessel. In the Lady Franklin, 8 Wall. 329, DAVIS, J., says: "The doctrine that the obligation between the ship and cargo is mutual and reciprocal, and does not attach until the cargo is on board or in the custody of the master, has been so often discussed and so long settled that it would be useless labor to restate it or the principles which lie at its foundation."

In The Delaware, supra, on page 602, CLIFFORD, J., says: "Bills of lading when signed by the master, duly executed in the course of business, bind the owners of the vessel if the goods were laden

Witzler v. Collins.

on board or were delivered into the custody of the master, but it is well-settled law that the owners are not liable if the party to whom the bill of lading was given had no goods, or the goods described in the bill were never put on board or delivered into the custody of the carrier or his agent."

The result must have been the same if the goods at the depot or "elsewhere" had been brought to the attention of the clerk who signed the bill of lading, and it had been the intention that such goods should be embraced in the receipt. They were not so embraced, and no receipt was given for any goods other than the "nineteen packages more or less" then on the wharf. It is not a question of intention simply except so far as that intention is learned from the language used in the writing.

It may be true as stated in 2 Redf. on Railways, § 156, par. 6, "that an acceptance by the carrier at an unusual place will be sufficient to charge him," but by the same authority there must be an acceptance and by some one legally authorized. Here there was not only no acceptance, at any place except on the wharf, but no one authorized to make the acceptance elsewhere.

The action is against the defendants as owners of the boat. The goods were received by one employed for that purpose. So far as appears he had no authority other than that usually attached to such a position, certainly no more than the master ordinarily has; and that as already seen is sufficient only to bind the owners when exercised in the ordinary course of business and in relation to goods delivered on board, or into the actual possession of the master at the wharf. The Delaware, supra, on page 602.

Nor is there any evidence upon which the jury could find a constructive delivery. That can be only when by the constant practice and usage of the carrier he receives property left for transportation at a particular place. 1 Chit. on Cont. 686, note.

If therefore the instructions were correct as abstract principles of law, they were not applicable to this case for want of testimony upon which they can rest; and in this respect the case is analogous to that of the United States v. Breitling, 20 How. 252, and must be governed by the doctrine there laid down on page 255, as follows: "It is clearly error in a court to charge a jury upon a supposed or conjectural state of facts, of which no evidence has been offered. The instruction presupposes that there is some evidence before the jury which they may think sufficient to establish the

Witzler v. Collins.

facts hypothetically assumed in the opinion of the court; and if there is no evidence which they have a right to consider, then the charge does not aid them in coming to correct conclusions, but its tendency is to embarrass and mislead them. It may induce them to indulge in conjectures, instead of weighing the testimony."

In this case we must infer that the jury were led into error, for while there is no evidence tending to show any liability on the part of the defendants for loss of, or damage to any goods not on the wharf at the time the bill of lading of September 9 was given, we are unable to account for the amount of the verdict except on the ground that they were held for all the goods started from New York, though for aught that appears some of them, and perhaps all that were lost, may never have been put into their custody.

3. The court in ruling upon the admissibility of testimony offered by defendants upon the condition of the goods when received, held that the bill of lading was conclusive evidence as to their apparent condition at that time.

A bill of lading is twofold in its character. It is a receipt as to the quantity and condition of the goods shipped, and a contract to transport and deliver the same upon the terms specified. That used in this case began in the usual form: "Shipped in apparently good order and well conditioned," and describing the property as "19 packages II. H. goods more or less," and contains at the close the clause: "Contents and condition unknown." The first clause if applied to the condition of the goods would be inconsistent with the last; for condition unqualified would include the apparent as well as the real; if the first is applied to the packages, then both can stand together and each have its full and proper meaning and effect. However it may be in this, in many cases this would be a matter of importance to enable the parties, if the goods were injured when delivered at the end of the route, to ascertain the more easily whether the injury happened during the carriage or was the result of a previous defect. This was the construction given to a similar bill of lading in Clark v. Barnwell, 12 How. 283, holding that the acknowledgment as to condition extended only to the cases, "excluding any implication as to the quantity or quality of the article, or condition of it at the time received on board, or whether properly packed or not in the boxes."

Under this construction as the testimony offered related to the

Witzler v. Collins.

condition of the goods and not to that of the packages, it is evident that it should have been received.

first to the

But we if we discard the last clause and apply the condition of the goods, the result must be the same. So far as a bill of lading is receipt, it has the same character as other receipts and is subject to the same principles of law. We are not aware of any more solemnity in its execution or any more importance to be attached to it than to other instruments of a like nature. It has often been decided that it may be modified, controlled or contradicted by parol testimony. Upon this point the authorities are numerous and uniform or nearly so. O'Brien v. Gilchrist, 34 Me. 554; Tarbox v. Eastern Steamboat Co., 50 id. 339; Sears v. Wingate, 3 Allen, 103; Shepherd v. Naylor, 5 Gray, 591; Blanchard v. Page, 8 id. 287; Richards v. Doe, 100 Mass. 524; Hastings v. Pepper, 11 Pick. 43; Maryland Ins. Co. v. Rider's Admr., 6 Cr. 340; Nelson v. Woodruff, 1 Black. 156; Ship Howard v. Wissman, 18 How. 231; The Delaware, 14 Wall. 601; 2 Whart. Ev., § 1070; 1 Greenl. Ev., § 305.

Some of these cases as well as others are relied upon to sustain the ruling in question, at least by implication, but a careful examination of them we think leads to a different conclusion. Perhaps one of the strongest is that of Hastings v. Pepper, in which it is said the acknowledgment in the bill of lading that the goods were in "good order and well conditioned, is prima facie evidence that as to all circumstances which were open to inspection and visible, the goods were in good order; but it does not preclude the carrier from showing, in case of loss or damage, that the loss proceeded from some cause which existed but was not apparent, when he receives the goods." In this case there was no qualification to the acknowledgment, hence in terms it applied as well to hidden as to open defects. Still the court said it was prima facie as to the open, and in effect that it had no bearing upon such defects as were not visible. This is the only construction we can give the language without taking all meaning and effect from the phrase prima facie so unqualifiedly used. In the same opinion it is stated that this is one of the positions which "may be taken to be perfectly well established." This case is referred to and in this respect adopted in Nelson v. Woodruff. This will be found to be the result of most or all the cases where a construction 18 given to a bill of lading, with an admission thus unqualified, and it is unnecessary to refer to them more particularly.

Witzler v. Collins.

It would be singular indeed if a qualified admission is to have a greater effect than one without qualification.

The reason given in some of the cases, as in Barrett v. Rogers, 7 Mass. 300, why the admission though unqualified should not apply to or be holden conclusive as to interior or invisible defects, "because such were not open to inspection" cannot avail as a reason why the admission should be held conclusive in regard to those matters which are open. The distinction between the visible and invisible defects is not to affect the construction to be put upon the language used. In either case it is but an admission and must be treated as such. It may and must affect the probative force of the acknowledgment. A receipt is open to explanation by evidence aliunde, not because the matters therein referred to are more or less apparent, but because it is an admission and nothing more than an admission, and its nature is the same whether written or verbal, qualified or absolute.

It is self-evident that every admission offered in evidence will depend for its force upon the circumstances under which it was made. If made without knowledge and when knowledge could not reasonably be expected, as held in some of the cases cited, it would have no effect whatever. If on the other hand it was deliberately made with knowledge or under such circumstances as to show a duty to know, the probative force would be great; and under some circumstances so great that a jury might hold a party to it, though he testified differently upon the stand; certainly unless he gave a satisfactory explanation of the change. This is undoubtedly what, and all that was meant by the remark found in a few of the cases cited, that the carrier is bound by the admission of the condition of the goods received when plainly visible. The context shows that nothing more could have been intended.

In accordance with these views the number of articles stated in the receipt, though clearly open to inspection, has always and without question been held open to explanation, and in Ship Howard v. Wissman, supra, as in other cases, testimony as to the apparent, as well as the real condition of the cargo, was admitted without objection to overcome the prima facie case made by the bill of lading.

An admission in writing or otherwise, is not conclusive when not true, unless by way of estoppel, which is not applicable here. It might be, had the bill of lading been assigned to a bona fide pur