[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 517 For the purpose of establishing a right to recover the $80 claimed as damages for detention and the $8 paid for towing, the plaintiff was permitted to testify that the so-called bills of lading did not embrace the entire contract under which the cargo was shipped, and that it was only *Page 519 agreed that the cargo was to be unloaded alongside, and in case the boat was sent below Albany the defendant was to pay for towing it from Albany to its destination and return. The defendant objected to this evidence upon the ground that the bills of lading were the best and only evidence of the contract, and that testimony was inadmissible to vary the contract expressed in them.
The defendant, in his answer, alleged: "That said cargo was, by the agreement made for the shipment thereof, to be transferred from the place of shipment to Albany, and from thence to any place between Albany and Poughkeepsie to which the same might be directed to be transported by said Charles H. Van Zandt, Agt., upon said canal boat `Thos. Shallow,' without being removed or transferred therefrom, such transportation to be completed, and delivery of said cargo to be made at the place of final destination, at the rate of one dollar 12½ cents per cord." * * *
"That by said agreement the freight upon said cargo was to be at and after the rate of one dollar twelve and one-half cents per cord, delivered at the place to which said Charles H. Van Zandt, Agt., might direct the same to be transported, as aforesaid, and that if the bill of lading or agreement for the transportation of said cargo stated that the same was to be transported for one dollar twelve and one-half cents per ton, such statement was inserted therein by mistake, and contrary to the agreement and understanding of the plaintiff and defendant with reference thereto." * * *
"That by the contract for the transportation of said cargo it was agreed by the plaintiff that he would, in the discharging of said cargo, do so much of the labor necessary therefor as should consist in filling the baskets or other vessels by means of which said cargo should be discharged and removed, and that the plaintiff failed and refused so to do, and the defendant was compelled to, and did, procure such labor to be done, which labor was worth the sum of $34.40."
Both parties having alleged in their pleadings that important provisions of their contract were not embraced in the *Page 520 bills of lading, it was competent for either to establish the omitted provisions by oral evidence.
The weigh-master's certificate was received as evidence of the weight of the cargo over the defendant's objection "as incompetent." The weight was a relevant fact. Conceding that the weight could not be proved by the certificate, and that the objection clearly related to the mode of proving instead of the right of proving the weight, the ruling was not one for which the judgment, entered on the report of the referee, should have been reversed. No issue was made over the weight of the cargo. The record shows that the plaintiff gave oral evidence that a cord of sawdust weighs one and one-eighth of a ton, which makes the weight of the cargo ninety-two and one-half tons, which evidence was not disputed.
Two other exceptions are referred to in the respondent's brief as sufficient to sustain the reversal, but we do not think so.
The judgment of the General Term should be reversed, and the judgment, entered on the report of the referee affirmed, with costs.
All concur, except HAIGHT, J., not sitting.
Judgment reversed.