ceipt are embodied in the same instrument forms no reason why they should be regarded as differing in effect from similar instruments executed in an independent form. The clauses in a bill of lading which relate to the quantity and condition of the goods received do not enter into the contract between the parties and are explainable by parol.16 21. Particular Receipt Clauses.-As between the shipper and the carrier, in the absence of any express stipulation between the parties affecting the conclusiveness of the bill of lading, evidence is admissible to show that there is a mistake in the statement in the bill as to the quantity of goods received, and that the quantity specified in the bill is greater than the quantity actually received.17 Especially is this rule true where a bill of lading acknowledges the receipt of a certain quantity of goods which are in sealed packages when delivered to the carrier,18 or where a bill of lading by its terms indicates that there is some uncertainty as to the quantity.19 While ordinarily the acknowledgment of the quantity of goods received may be explained by parol, nevertheless a carrier and a shipper may make the quantity of goods received a matter of express contract, thereby taking the stipulations out of the rule as to the admissibility of parol evidence to vary a receipt and bring it within the rule that parol evidence is not admissible to vary a written contract.20 Whether or not a shipowner or carrier is estopped to deny the act of a master or servant is discussed in another part of this article.1 Parol evidence is admissible to vary, control, or contradict a clause in a bill of lading stating that the goods were received in good condition by a carrier, as such a clause is prima facie evidence only as to the condition of the goods shipped. The rule stated is in no wise affected by the fact that in a particular instance articles received by a car v. Newhall, 126 N. Y. 574, 27 N. E. 947, 22 A. S. R. 859; Thomas v. Atlantic Coast Line R. Co., 85 S. C. 537, 64 S. E. 220, 67 S. E. 908, 21 Ann. Cas. 223, 34 L.R.A. (N.S.) 1177; Valieri v. Boyland, L. R. 1 C. P. 382, 4 Eng. Rul. Cas. 665. K. & T. R. Co. v. Simonson, 64 Kan. 15 Mich. 206, 93 Am. Dec. 184; Rhodes 38 Am. Dec. 409 note; 4 L.R.A. 244 note; 21 Ann. Cas. 225 note. 16. 21 Ann. Cas. 225 note. 17. O'Brien v. Gilchrist, 34 Me. 554, 56 Am. Dec. 676; Kelley v. Bowker, 11 Gray (Mass.) 428, 71 Am. Dec. 725; Strong v. Grand Trunk R. Co., 38 Am. Dec. 413 note; 105 A. S. R. 335 note; 21 Ann. Cas. 226 note. 18. Fitzgerald v. Adams Exp. Co., 24 Ind. 447, 87 Am. Dec. 341. 19. 21 Ann. Cas. 228 note. 20. Rhodes v. Newhall, 126 N. Y. 574, 27 N. E. 947, 22 A. S. R. 859. 38 Am. Dec. 413 note; 21 Ann. Cas. 227 note. 1. See infra, par. 28 et seq. 2. Wayland's Adm'r v. Mosely, 5 rier and acknowledged to be in good condition were open for inspection and not in closed packages. The fact that the articles were open for inspection would only affect the probative value of an admission as to their condition and would not prohibit the introduction of evidence to show their actual condition at the time of receipt. And further, the fact that a clause in a bill acknowledging the receipt of goods in good condition is subsequently modified by a clause asserting that the condition is unknown does not alter the rule as to the admissibility of parol evidence but is merely a circumstance to be considered by the jury, but parol evidence is not admissible to show that goods not specified in a bill of lading and not delivered to a carrier were intended to be a part of a shipment. The consideration clause in contracts, deeds, and other instruments, ordinarily has only the force and effect of a receipt, and is open to explanation and contradiction by parol evidence. This rule is applicable to bills of lading, and therefore it is permissible to show that the rate mentioned in a bill of lading was not a special or reduced rate granted where a carrier's liability is limited but a regular rate demanded where a carrier's liability is not limited." 22. Contractual Stipulations Generally.-The rule denying the admissibility of parol evidence to vary written contracts is applicable to the contractual stipulation in a bill of lading; for in the transportation of freight a bill of lading embodies the contract between a shipper and a carrier, and when delivered by a carrier and received by a shipper, its terms, stipulations, and conditions are as binding on the parties thereto as are the terms, stipulations, and conditions of any other written contract. A bill of lading is, therefore, to be taken as the sole evidence of the final agreement of the parties, by which their duties and liabilities must be regulated and in which all prior and contemporaneous agreements are merged, and parol evidence is inadmissible to vary its terms or legal import. The Ala. 430, 39 Am. Dec. 335; Mears v. New York, N. H. & H. R. Co., 75 Conn. 171, 52 Atl. 610, 96 A. S. R. 192, 56 L.R.A. 884; O'Brien v. Gilchrist, 34 Me. 554, 56 Am. Dec. 676; Witzler v. Collins, 70 Me. 290, 35 Am. Rep. 327. 38 Am. Dec. 415 note; 105 A. S. R. 335 note. Co., 92 Mo. 343, 4 S. W. 689, 1 A. 7. Wayland's Adm'r v. Mosely, 5 Ala. 430, 39 Am. Dec. 335; Cox v. Peterson, 30 Ala. 608, 68 Am. Dec. 145; Tallassee Falls Mfg. Co. v. Western R. Co., 117 Ala. 520, 23 So. 139, 67 A. S. R. 179 and note; Louisville, E. & St. L. R. Co. v. Wilson, 119 Ind. 3. Witzler v. Collins, 70 Me. 290, 35 352, 21 N. E. 341, 4 L.R.A. 244 and Am. Rep. 327. note; Mulligan v. Illinois Cent. R. Co., 4. Witzler v. Collins, 70 Me. 290, 35 36 Iowa 181, 14 Am. Rep. 514; MissouAm. Rep. 327. ri K. & T. R. Co. v. Simonson, 64 Kan. 5. Witzler v. Collins, 70 Me. 290, 802, 68 Pac. 653, 91 A. S. R. 248, 57 35 Am. Rep. 327. L.R.A. 765; Roberts v. Riley, 15 La. 6. McFadden v. Missouri Pac. R. Ann. 103, 77 Am. Dec. 183; O'Brien fact that a shipper did not read a bill of lading will not, in the absence of fraud, change the operation of the rule stated. However, before the rule stated can be applied, it must appear that a bill of lading was intended by the parties to represent the contract between them, that all prior negotiations leading up to the issuance of a bill of lading were made in contemplation of the execution of that instrument; and if it should appear that a bill of lading was not intended by the parties to be the contract of carriage parol evidence is admissible to establish the real contract. Thus where it appears that a receipt given for goods was not intended as a bill of lading, but on the contrary a regular bill of lading was to be issued later, parol evidence is admissible to show the actual terms of the contract of carriage.10 The rule stated does not prevent a shipper from bringing an action to recover damages for the breach of an antecedent paroi agreement as to transportation which is entirely independent and distinct from a bill of lading and therefore not superseded thereby.11 A bill of lading to have binding force must have been delivered to and accepted by a shipper, because until a shipper assents to a bill there is no meeting of minds which is necessary to a binding contract; therefore, where it appears that a bill of lading was never delivered, parol evidence is admissible to show the terms of the contract of carriage.12 Where goods are shipped under a verbal agreement before any written contract or bill of lading has been tendered to the shipper, the subsequent acceptance of a bill of lading without assenting to its conditions will not conclude the shipper. Therefore where a verbal agreement has been acted on, and under it a shipper has parted with all control over his goods, the rule that prior negotiations are merged in a subsequently written contract does not apply and parol evidence is admissible to show the real contract. 18 The rule son v. Phillips & Colby Construction 8. St. Louis, K. C. & N. R. Co. v. Cleary, 77 Mo. 634, 46 Am. Rep. 13. 9. Mobile & M. R. Co. v. Jurey, 111 U. S. 584, 4 S. Ct. 566, 28 U. S. (L. ed.) 527. 10. Merchants' Despatch Transp. Co., v. Furthmann, 149 Ill. 66, 36 N. E. 624, 41 A. S. R. 265. v. Gilchrist, 34 Me. 554, 56 Am. Dec. 676; Witzler v. Collins, 70 Me. 290, 35 Am. Rep. 327; Whitnack v. Chicago B. & Q. R. Co., 82 Neb. 464, 118 N. W. 67, 130 A. S. R. 692, 19 L.R.A. (N.S.) 1011; Germania Fire Ins. Co. v. Memphis & C. R. Co., 72 N. Y. 90, 28 Am. Rep. 113; Hill v. Syracuse, B. & N. Y. R. Co., 73 N. Y. 351, 29 Am. Rep. 163; Van Etten v. Newton, 134 N. Y. 143, 31 N. E. 334, 30 A. S. R. 630; Loomis v. New York Cent. & H. R. R. Co., 203 N. Y. 359, 96 N. E. 748, Ann. Cas. 1913A 928; Morganton Mfg. Co. v. Ohio R. & C. R. Co., 121 N. C. 514, 28 S. E. 474, 61 A. S. R. 679 and note; Davis v. Central Vermont R. Co., 66 Vt. 290, 29 Atl. 313, 44 A. S. R. 13. Merchants Despatch Transp. Co. 852; Strohn v. Detroit & M. R. Co., v. Furthmann, 149 Ill. 66, 36 N. E. 21 Wis. 554, 94 Am. Dec. 564; Morri- 624, 41 A. S. R. 265; Germania Fire 11. St. Louis S. W. R. Co. v. Elgin Condensed Milk Co., 175 Ill. 557, 51 N. E. 911, 67 A. S. R. 238. 12. Mobile & M. R. Co. v. Jurey, 111 U. S. 584, 4 S. Ct. 566, 28 U. S. (L. ed.) 527. 14 has no application to the introduction of parol evidence to establish a contract entered into after the execution of a bill of lading.1 23. Express Contractual Stipulations.-The rule stated as to the inadmissibility of parol evidence to vary the contractual terms of a bill of lading applies with the greatest force where it is applied to express stipulations in a bill. Accordingly parol evidence is not admissible to show that before a bill of lading was issued the parties agreed on a different route from that specified in the bill,15 or that the shipper is a person other than the one specified as such in the bill of lading,16 or to vary the amount of the consideration recited, or to change or qualify the designated place of delivery of the goods,18 or to show a greater value of the goods than that specified for the purpose of limiting the carrier's liability,19 or that the carrier agreed to forward goods on the day a bill of lading was signed, where the bill stipulates merely for transportation "without unnecessary delay." 20 Likewise where a bill of lading limits a carrier's liability to loss caused by his negligence only it is not permissible to introduce evidence to show that there was no agreement so to limit the liability, and the fact that a shipper did not acquaint himself with the terms of a bill of lading does not in anywise alter the application of the rule. The same rule is applicable where a carrier stipulates against any liability on account of delay in transportation, or where it stipulates against liability for damage caused on a connecting line.3 24. Implied Obligations in Bill of Lading.-Not only is parol evidence inadmissible to change or vary in any particular the express terms of a bill of lading, but in these instruments, as in all other written contracts, there may be implied obligations as to which the contract may be entirely silent, but which result by necessary implica Ins. Co. v. Memphis & C. R. Co., 72 N. Y. 90, 28 Am. Rep. 113 (referring to the rule stated in the text); Strohn v. Detroit & M. R. Co., 21 Wis. 554, 94 Am. Dec. 564. 14. Barber v. Brace, 3 Conn. 9, 8 Am. Dec. 149; Atwell v. Miller, 11 Md. 348, 69 Am. Dec. 206. 15. McElveen v. Southern R. Co., 109 Ga. 249, 34 S. E. 281, 77 A. S. R. 371. 16. Van Etten v. Newton, 134 N. Y. 143, 31 N. E. 334, 30 A. S. R. 630. 17. Louisville, E. & St. L. R. Co. v. Wilson, 119 Ind. 352, 21 N. E. 341, 4 L.R.A. 244. 18. Cox v. Peterson, 30 Ala. 608, 68 Am. Dec. 145; Whitnack v. Chicago, B. & Q. R. Co., 82 Neb. 464, 118 N. W. 67, 130 A. S. R. 692, 19 L.R.A. (N.S.) 1011. 19. Pacific Exp. Co. v. Foley, 46 Kan. 457, 26 Pac. 665, 26 A. S. R. 107, 12 L.R.A. 799. 20. 38 Am. Dec. 416 note. 1. St. Louis, K. C. & N. R. Co. v. Cleary, 77 Mo. 634, 46 Am. Rep. 13; Germania Fire Ins. Co. v. Memphis & C. R. Co., 72 N. Y. 90, 28 Am. Rep. 113; Davis v. Central Vermont R. Co., 66 Vt. 290, 29 Atl. 313, 44 A. S. R. 852; Morrison v. Phillips & Colby Construction Co., 44 Wis. 405, 28 Am. Rep. 599. 2. Hill v. Syracuse, B. & N. Y. R. Co., 73 N. Y. 351, 29 Am. Rep. 163. 3. Mulligan v. Illinois Cent. R. Co., 36 Iowa 181, 14 Am. Rep. 514. tion or construction from the very nature of the contract itself; and such implied obligations can no more be varied by verbal evidence than the express written stipulations of the parties. Without regard to the rights of the shipper and carrier, as they may be under special contracts, the agreement which the law imports into every bill of lading which does not stipulate the price to be paid for the service is that the compensation shall be reasonable, and such as is customarily charged others for like service, under like conditions. A bill as thus construed constitutes a complete contract, and therefore parol evidence is not admissible to show that a particular rate of transportation was agreed on when the bill of lading is silent respecting it. But where a parol stipulation as to the payment of freight has been performed such fact may be proved notwithstanding an implied agreement contrary thereto. An implied obligation arising from a clean bill of lading is that the goods will be stowed below deck, and parol evidence will not be admitted to show a prior agreement to stow the goods above deck as the implied obligation is as much a part of a bill as an express stipulation. In some jurisdictions it is held that if a bill of lading is silent in respect to the line by which a consignment of goods is to be forwarded, its effect is the same as if a provision were inserted therein that the carrier should have the right to select at its discretion any customary or usual route which might be regarded as safe and responsible, and parol evidence is inadmissible to prove that there was an agreement to forward the consignment by a particular route. Likewise it has been held that where the consignor has accepted a bill of lading stipulating that goods consigned to any point beyond the initial carrier's terminus may be sent forward by a carrier willing to receive the same, he cannot prove that he gave oral directions that the goods should be shipped "by rail." And if the bill of lading specifies that the initial carrier may forward the goods from its terminus either by water or rail, parol evidence is not admissible to show that representations were made that the goods would be delivered to a connecting railroad.10 Where no time of performance is expressed in a bill of lading the instrument is not on that account to be regarded as incomplete, so as to admit proof of 4. Central R. & Banking Co. v. Hasselkus, 91 Ga. 382, 17 S. E. 838, 44 A. S. R. 37. 5. Louisville, E. & St. L. R. Co. v. Wilson, 119 Ind. 352, 21 N. E. 341, 4 L.R.A. 244. 6. O'Donnell v. Sweeney, 5 Ala. 467, 39 Am. Dec. 335. 7. Barber v. Brace, 3 Conn. 9, 8 Am. Dec. 149. 38 Am. Dec. 416 note. 8. Louisville, E. & St. L. R. Co. v. Wilson, 119 Ind. 352, 21 N. E. 341, 4 38 Am. Dec. 416 note; Ann. Cas. 1913A 928 note. 9. Ann. Cas. 1913A 928 note. 10. McElveen v. Southern R. Co., 109 Ga. 249, 34 S. E. 281, 77 A. S. R. 371. Ann. Cas. 1913A 928 note. |