The defendant has no just ground of exception to the admission of the evidence objected to at the trial.
It was competent, on the question of title, for the plaintiffs to prove that they had bought and paid for 22,630 pounds of rye, the contents of the car which arrived at West Springfield consigned to them. The oral evidence, that the bill of lading called for that amount, did not injuriously affect the defendant, as the bill itself was put in evidence without objection. Merrick v. Plumley, 99 Mass. 566. Roberts v. Wentworth, 5 Cush. 192.
*508The rulings of the presiding judge, in submitting the case to the jury, were not erroneous.
The claim of the defendant, that it was bound to deliver to the plaintiffs only the 20,000 pounds of rye called for in the way-bill of the “ White Line ” Company, cannot be sustained upon the evidence reported. It appears by the bill of exceptions that Easton & Co. received from the Indianapolis, Bloomington & Western Railway Company a bill of lading, which was sent to the plaintiffs as consignees, of a car load of rye in bulk, on the “ White Line ” car No. 747, weighing 20,000 pounds, more or less, the freight not to exceed 75 cents per hundred, and to be paid upon the weight by the company’s scales. The way-bill given by the “ White Line,” though more brief, differed in its recitals only in the weight, which was stated to be 20,000 pounds. On the arrival of the car at West Springfield, the defendant, finding that there was an excess of weight over the White Line waybill, took 2168 pounds of the rye, which it afterwards sold, and delivered the balance, 20,500 pounds to the plaintiffs, claiming that the plaintiffs were entitled to no more than that way-bill demanded. But it also appeared in evidence that the defendant was one of the corporations composing and owning the so-called White Line Company, and that the White Line carried freights in its cars, according to the contracts made by the Indianapolis, Bloomington & Western Railway Company. Indeed, the way-bill of the White Line recognizes this contract with Easton & Co. in terms, as to freight and in other particulars, except the weight of the rye. It was a car load in bulk, weighing 20,000 pounds more or less, which the Indianapolis, Bloomington & Western Railway Company agreed to carry; the White Line undertook to carry the same car load, and was bound to do it according to that contract, and the omission of the words “ more or less,” or the evidence that by usage 20,000 pounds was a car load, could not entitle the defendant to withhold or take from the plaintiffs the excess of 20,000 pounds, if the plaintiffs owned it. If they were owners, they were entitled to receive the contents of the car upon payment of freight. The only questions for the jury, therefore, were whether the plaintiffs did own all the rye in the car, and were entitled to the posses*509sion, and whether the defendant had converted the excess to its own use. These questions were presented to the jury upon proper instructions. It does not appear, in the evidence reported, that the defendant sold the excess because the freight was not paid on it, but because it claimed to have the right to do so, as against the consignees, it not being included in the way-bill. There was also some evidence, the weight of which was for the jury, that the orders of the defendant company were not to take freight on the excess of grain, above the amount named in the way-bill. If the defendant sold the rye for other causes than non-payment of freight, or if it gave notice that the freight would not be received for it, the plaintiffs were not bound to make a tender, and the instructions to the jury on this part of the case were correct. Adams v. Clark, 9 Cush. 215. Hazard v. Loring, 10 Cush. 267.
The rule of damages was correctly given, that the plaintiffs could recover the value of the rye at the time and place when taken by the defendants, deducting the freight at the through rate of 75 cents per hundred. As this was the rate named in the White Line way-bill, there is no foundation for the claim that the defendant was entitled to local freight, at the rate of |1.48i per hundred. Briggs v. Boston & Lowell Railroad Co. 6 Allen, 246. Ingledew v. Northern Railroad, 7 Gray, 86.
The jury having found there was no fraud on the part of Easton & Co. or the plaintiffs, it is unnecessary to consider the rulings on that point. Exceptions overruled.