It is well settled upon authority that the part of a bill of lading which specifies the quantity of the goods shipped is not conclusive upon the carrier, but may be shown by extrinsic evidence to be incorrect. In this respect it is but a receipt, and not a stipulation of a written contract. The question was examined by this court in Ellis v. Willard, (5 Seld. 530,) where the prior authorities are referred to. The counsel for the defendant argues that the express provision contained in the bill of lading in this case, that "any damage or deficiency in quantity, the consignee will deduct from the balance of freight," created a distinction between it and the cases which have been decided. The words deficiency in quantity relate, I think, to the property shipped. This is inferable from its association with the term damage, which plainly has reference to delinquencies attributable to the carrier. No doubt it might be made a matter of an express contract that the carrier should account for the precise quantity acknowledged in the instrument, and that no other evidence on that point should be received. There are no words here indicating that such a stipulation was designed to be attached to this contract. Without the language relied on, the bill of lading would be presumptive evidence of the quantity, and the carrier, unless he could show a mistake, would be obliged to account accordingly. The special language does not, I think, alter the case.
The defendant further relies on the principle that a bonafide indorser of a bill of lading, advancing his money on it, may rely upon the quantity acknowledged, and may compel the carrier to account for that quantity, whether it was put on board or not. There is, no doubt, an established distinction in favor of a bona fide indorsee, grounded upon the doctrine of estoppel. By signing the bill of lading, acknowledging the receipt of a given quantity of merchandise, the master has enabled his shipper to go into market and obtain money on the credit of the shipment, and can not be permitted, as against a person so advancing, to set up his own *Page 599 or the master's want of care at the expense of the indorsee. This results from the qualified negotiability of these instruments. (See Dows v. Perrin, 16 N.Y. Rep. 325; Bates v. Todd, 1 Moo. and Rob. 106; Berkley v. Watkins, 7 Ad. El. 29.) But in the present case the defendant was not the purchaser of the property while it was in the hands of the carrier, and he did not make title to it through the bill of lading. His purchase of the wheat was made prior to the lading on board the canal boat, and the wheat was his property before and at the time it was placed on board. The purchase was of 7494 bushels from Horton, who engaged to ship it to the defendant. In making the shipment he was the defendant's agent, and his knowledge was the defendant's knowledge. If he failed to ship by this and the other boat the full amount which the defendant had purchased of him, he is still liable for the balance. That balance he must be considered as having appropriated to his own use, unless he shall show that he has kept it on hand for him. There would be no justice in compelling the carrier to pay for the deficiency, if he is able to show that he never received it.
The jury have settled the question of fact against the defendant. A mistake occurred in some part of the transaction, either in the account of the wheat delivered on board, and which was entered in the bill of lading, or in the statement of the quantity delivered at Rochester, or the quantity deficient was lost by the carrier. The evidence upon these subjects was submitted to the jury, and they have found that the fault was not in the plaintiff.
It follows that the judgment of the Supreme Court ought to be affirmed.
All the Judges concurred, except SELDEN, J. who was for reversal.
Judgment affirmed. *Page 600