Decision—Judgment affirmed. For affirmance—Jewett, Ch. J., Bronson, Gardiner, Wright, Rüggles and Johnson, JJ. For reversal—Jones and Gray, JJ.
Note.—As there does not appear to be any written opinion by this court, it is presumed they adopted the opinion of the supreme court, (4 Denio, 110,) Jewett, justice, which held,—That the obligation to pay freight rested on the bill of lading, by which its payment was made a condition of delivery to the consignee or his order. The master was not bound to part with the goods until the freight was paid; but did not, by delivering the goods before payment, waive or discharge his legal right to demand payment of the person who, by the principles of law, was primarily liable to pay.
It was well settled, that when the goods, by the terms of the bill of lading, are to be delivered to the consignee or to his order on payment of freight; the party receiving them, whether the consignee, or endorsee, to whom the bill of lading has been transferred by the consignee, makes himself responsible for the payment of the freight. The law implies a promise on his-part to pay the freight; such being the terms on which, by the bill of lading, the goods were to be delivered. By the act of accepting and receiving, the party makes himself a party to the contract.
In this case, the goods were consigned to the defendants, or to their order They endorsed the bills of lading, and ordered a delivery to Mainon & Bonnay, to whom the goods were delivered. They, and not the defendants, were therefore bound to pay the freight.
Jfot reported.