The writing given by the defendants, on receiving the goods in question, on its face, and without any evidence in regard to the business in which they were engaged, would not, certainly and unequivocally, amount to anything more than a mere receipt for the goods. The terms, to be forwarded, would not in that case necessarily import an undertaking, on their part, either to send or carry the goods to any place for the persons who delivered them. It became necessary, therefore, in order to enable the court to determine the true import of these terms in the connection in which they were used, and to ascertain what the parties intended by them, to show in what business they were engaged, and to what subject matter the writing applied, to prove some extrinsic facts. Had nothing been shown beyond the facts that the plaintiffs were manufacturers of goods of that description, for sale in the usual course of trade, and that the defendants were warehousemen and forwarders, the writing would undoubtedly, in the light of such facts alone, be held to import clearly an undertaking, on the part of the defendants, to deliver the goods at the earliest opportunity to some trusty and responsible carriers, who should engage on the usual terms to carry and deliver them, at the place of destination, to the persons to whom they were addressed or consigned. In such a case it is clear that the defendants could not be held liable for any damage or loss happening in the manner the loss in question is found to have happened. But whenever it becomes necessary for the court, in order to interpret an instrument, to resort to proof of extrinsic facts at all, it ought to hear all the facts and circumstances legitimately bearing upon the subject to which the instrument relates. It should *Page 576 then surround itself with all the material facts and circumstances which surround the parties at the time, and occupy, as nearly as possible, their position. Hence proof of the other facts connected with this transaction became not only important, but absolutely necessary, to enable the court to perform its duty of interpreting the writing, and determining the true intent and meaning of the terms employed. And when the additional facts came to be established, that this was not an isolated transaction between the same parties — that the defendants, in addition to being warehousemen and forwarders, were common carriers also — that in the spring, previous to the loss in question, they had agreed with the firm of which the plaintiffs are members and assignees to carry their goods to and from New-York at a specified price per hundred, and that they had from time to time, before this, received goods of said firm at their warehouse, where the goods in question were delivered, to be carried under the general arrangement — it became apparent that the writing was not necessarily a distinct and independent agreement, in reference to this particular parcel of goods, by which the defendants were to act as forwarders merely. In the light of all these facts and circumstances, the terms "to be forwarded," instead of importing an absolute and unqualified undertaking on the part of the defendants to deliver the goods to some carriers who should undertake to transport them, amount merely to an acknowledgment of the purpose for which the goods had been delivered by the owners, that is, to be forwarded or carried by the defendants themselves, under the existing arrangement. Such is the natural and reasonable import of the terms employed, in view of all the surrounding facts and circumstances. The writing is not a new undertaking, changing preëxisting relations, but mere evidence that the parties were carrying out and performing the prior agreement, which embraced all the necessary terms and conditions. The goods having been delivered to the *Page 577 defendants to be forwarded or carried by them under their prior agreement immediately on the first opportunity, without farther orders from the owners, they became responsible, as carriers, the moment the goods came fully into their possession, and are consequently liable for the loss in question. (Angell onCarriers, §§ 75, 131, 134; Story on Bailments, § 536; Edwardson Bailments, 446, 447, 448, 449.)
The admission of evidence of extrinsic facts upon the trial, and the application of the facts established to the instrument, by way of interpretation, were in no respect in conflict with the rule which forbids the introduction of parol evidence to contradict or vary written instruments.
The judgment of the supreme court should therefore be affirmed.
DENIO, C.J., A.S. JOHNSON, SELDEN and HUBBARD, Js., were also for affirmance; MITCHELL, J., was for reversal. WRIGHT, J., did not hear the case argued and took no part in the decision.
Judgment affirmed.